J-S40018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 STEFON JOHNSON, JR.                     :
                                         :
                   Appellant             :   No. 1758 WDA 2018

          Appeal from the PCRA Order Entered November 9, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0001038-2014,
                         CP-25-CR-0002133-2014


BEFORE:    BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                   FILED OCTOBER 31, 2019

     Stefon Johnson, Jr. appeals from the order dismissing as untimely his

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. We quash this appeal.

     In November 2014, Johnson pled guilty to two counts of robbery, 18

Pa.C.S.A. § 3701(a)(1). In January 2015, the trial court sentenced Johnson to

114 to 228 months’ incarceration. We affirmed the judgment of sentence in

October 2015. Johnson did not file a petition for allowance of appeal to the

Supreme Court of Pennsylvania.

     In February 2016, Johnson filed a timely pro se PCRA petition. The court

appointed counsel, who filed an amended petition. The PCRA court denied the

petition and this Court affirmed. We concluded that Johnson waived all claims

except whether trial counsel was ineffective in recommending that he


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40018-19



withdraw his suppression motion. The court also concluded that, even if

Johnson had not waived his other claims, he would not be entitled to relief.

        In April 2018, Johnson filed the instant pro se PCRA petition, alleging

his PCRA counsel was ineffective in failing to preserve most issues raised in

his first pro se PCRA petition and his trial counsel was ineffective during the

plea and sentencing process. The PCRA court issued notice of its intent to

dismiss the petition without a hearing. Johnson filed a response. In November

2018, the court dismissed the petition as untimely. Johnson filed a Notice of

Appeal at docket number CP-XX-XXXXXXX-2014, listing both docket number

CP-XX-XXXXXXX-2014 and number CP-XX-XXXXXXX-2014. He did not file the

Notice of Appeal at docket number CP-XX-XXXXXXX-2014.

        Johnson raises the following issues on appeal:

          A. Whether statutory tolling equitable tolling applies to
          [Johnson].

          B. Whether [Johnson] has previously litigated the claims
          enclosed with the same merits for review.

          C. Whether [Johnson’s] counsel William J. Hathaway [was]
          ineffective, and did it prejudice [Johnson].

          D. Whether the material evidence that the Commonwealth
          continue[s] to withhold are a Brady[1] violation vs. new[]ly
          discovered evidence or both.

Johnson’s Br. at 8 (some capitalization omitted).

        We first must address whether the appeal is properly before us.

Pennsylvania Rule of Appellate Procedure 341(a) provides: “(a) General

____________________________________________


1   Brady v. Maryland, 373 U.S. 83 (1963).

                                           -2-
J-S40018-19



Rule.--Except as prescribed in paragraphs (d) and (e) of this rule, an appeal

may be taken as of right from any final order of a government unit or trial

court.” Pa.R.A.P. 341(a). The Official Comment to the Rule states: “Where . .

. one or more orders resolves issues arising on more than one docket or

relating to more than one judgment, separate notices of appeal must be filed.”

Pa.R.A.P. 341, Official Note.

       The Pennsylvania Supreme Court recently held that the “proper practice

under Rule 341(a) is to file separate appeals from an order that resolves issues

arising on more than one docket.” Commonwealth v. Walker, 185 A.3d 969,

977 (Pa. 2018). It held that the failure to file separate notices “requires the

appellate court to quash the appeal.” Id. This rule was to apply prospectively,

to any notice of appeal filed after the issuance of the decision on June 1, 2018.

Id.

       Here, Johnson filed one Notice of Appeal, listing two docket numbers, at

docket at CP-25-CR-0001038-2014. He did not file the Notice at CP-25-CR-

0002133-2014. Because he filed a single notice of appeal from an order

resolving issues on more than one trial court docket, we must quash the

appeal. See Walker, 185 A.3d at 977.2


____________________________________________


2 We note that Johnson had been filing all papers in the PCRA court by filing a
paper that listed both docket numbers and that, for the instant PCRA petition,
the court also had been filing its orders at docket CP-25-CR-0001038-2014,
and not filing a document at CP-25-CR-0002133-2014. We understand why
Johnson would use same procedure for his hand-written notice of appeal.
However, as Walker established a bright-line rule, we must quash the appeal.

                                           -3-
J-S40018-19



      Even if we did not quash the appeal, we would conclude Johnson is not

entitled to relief.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the evidence of record and whether it is free of legal error.” Commonwealth

v. Ligon, 206 A.3d 515, 518 (Pa.Super. 2019) (quoting Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011)).

      A PCRA petition “shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment is final “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

      We affirmed Johnson’s judgment of sentence on October 20, 2015, and

he did not file petition for allowance of appeal. His conviction therefore became

final on November 19, 2015, 30 days after we affirmed the judgment of

sentence. See Pa.R.A.P. 1113(a) (“[A] petition for allowance of appeal shall

be filed with the Prothonotary of the Supreme Court within 30 days after the

entry of the order of the Superior Court or the Commonwealth Court sought

to be reviewed.”). To be timely, Johnson was required to file his PCRA petition

by November 19, 2016. See 42 Pa.C.S.A. § 9545(b)(1). His current petition,

filed in April 2018, is therefore facially untimely.

      To overcome the one-year time bar, Johnson bore the burden of

pleading and proving one of the three exceptions: (i) unconstitutional

                                       -4-
J-S40018-19



interference by government officials; (ii) newly discovered facts that he could

not have previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively. See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii). Further, for claims arising on or after Dec. 24, 2017, the

petition must have been “filed within one year of the date the claim could have

been presented.” See 42 Pa.C.S.A. § 9545(b)(2). For claims arising before

December 24, 2017, the petition had to be filed within 60 days of the date the

claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2) (amended).

      Johnson first claims that his PCRA petition is timely because he filed it

within 30 days of the date on which we affirmed the denial of his first PCRA

petition. When a PCRA appeal is pending, the defendant may not file a

subsequent PCRA petition until “the resolution of review of the pending PCRA

petition by the highest state court in which review is sought, or upon

expiration of time for seeking such review.” Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000). If, however, the subsequent petition is not filed

within one year of the date when the judgment of sentence became final, then

the petitioner must plead and prove one of the three time-bar exceptions.

Therefore, the time period for filing a PCRA petition is one year from the date

the judgment of sentence became final, and the appeal of Johnson’s first

timely-filed PCRA petition does not change this. Johnson is not entitled to relief

under this theory.

      To the extent Johnson argues that his PCRA petition is timely due to

PCRA counsel ineffectiveness, such a claim cannot satisfy the PCRA time bar.

                                      -5-
J-S40018-19



See Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (holding

“allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA”).

      Finally, to the extent Johnson’s claim of newly-discovered evidence can

be construed as a claim that he is timely under the newly-discovered fact

exception of the time bar, such a claim fails.

      Johnson claims that the Commonwealth provided fingerprint analysis

after sentencing that established that one of the sets of fingerprints did not

match his prints. He claims the Commonwealth continues to withhold other

fingerprint analysis. Other than saying that the Commonwealth did not

disclose the fingerprint analysis until after sentencing, Johnson does not allege

when he received the analysis, and therefore does not plead facts that would

establish that he acted with due diligence. Commonwealth v. Brown, 111

A.3d 171, 176-77 (Pa.Super. 2015) (to meet the new fact exception to the

time bar, petitioner must show “1) the facts upon which the claim was

predicated were unknown and 2) could not have been ascertained by the

exercise of due diligence”).

      Accordingly, we quash this appeal and, even if we were to review the

order dismissing the PCRA petition, Johnson would not be entitled to relief.

      Appeal quashed.

President Judge Emeritus Bender joins the Memorandum.

Judge Pellegrini files a Dissenting Memorandum.




                                      -6-
J-S40018-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/19




                          -7-
