J-A21041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

DALE M. JOHNSON

                          Appellant                No. 1885 WDA 2016


          Appeal from the PCRA Order entered December 1, 2016
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0016792-2008


BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED NOVEMBER 9, 2017

      Appellant, Dale Johnson, appeals pro se from the December 1, 2016

order entered in the Court of Common Pleas of Allegheny County, denying as

untimely his fourth petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         Following

review, we affirm.

      This Court adopted the following factual summary from an opinion

issued by the PCRA court in the course of considering Appellant’s third PCRA

petition, and we repeat it here:

      On August 13, 2008, the victim was attacked at his home. He
      first heard the sound of his back door crashing in. An intruder
      approached him at great speed, hit him on the head and threw
      him to the floor. The intruder wore a white mask and hit him on
      his head and face with a heavy object. A second person was
      present who the victim did not see. The victim heard two voices,
      one voice was heard to say, “Shoot him now.” The victim could
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     not tell which of the intruders uttered the statement. A gun was
     placed into his mouth and the victim heard it click. During the
     incident, the victim’s watch was taken from him.

     Officer Klobucher testified that he was a patrol officer on duty
     and in full uniform on the night in question. He stated that he
     was dispatched following a call from a neighbor that two
     individuals were attempting to gain entry to the victim’s
     residence. Officer Klobucher was the first officer to arrive at the
     scene, less than a minute and a half from the time he was
     dispatched.    Upon arrival, from the back of the house, he
     observed the broken back door, looked inside the house, and
     saw two individuals. They were both wearing masks, one mask
     tan and one mask white. Both individuals were making punching
     and pushing motions toward the floor.

     Eventually, the actor wearing the tan mask saw the Officer and
     extended his right arm straight out in front of him with his fist
     clenched. The Officer observed an object in the actor’s right
     hand but could not positively identify the object. Believing the
     object to be a gun, he took cover and drew his firearm. When
     he looked back into the residence, the masked individuals were
     no longer in sight.

     In the meantime, backup officers arrived on the scene. One
     suspect was apprehended in the basement. A firearm and a
     white bandana were recovered in the basement. The other
     individual was apprehended in the front of the residence. He
     was wearing a tan mask. That individual was identified by the
     apprehending Officer as Appellant.

     Officer Frisk, upon arrival, positioned himself in front of the
     house and observed a man wearing a tan mask peer out the
     front window between the blinds. Approximately ten to fifteen
     seconds later, a man wearing the same mask “burst through the
     front door.” Officer Frisk yelled for the actor to show his hands
     and get on the ground. Instead of complying with that directive,
     Appellant continued toward the Officer and the Officer deployed
     his Taser.

     Officer Frisk identified Appellant as the man wearing the tan
     mask who he apprehended leaving the front of the house.
     Appellant did not have a valid license to carry a firearm. The
     firearm was tested and returned as operable. Located on

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       Appellant’s person, in his right front pants pocket, was a gold
       and silver watch and a set of car keys. The watch recovered was
       consistent with what was identified by the victim as his watch.

Commonwealth           v.   Johnson,       No.   1858   WDA   2014,   unpublished

memorandum at 1-3 (Pa. Super. filed July 16, 2015) (quoting PCRA Court

Opinion, 11/22/11, at 3-5) (brackets and internal citations omitted).

       At trial, Appellant claimed he was not the second intruder but, rather,

was the merely the driver of the vehicle that brought the two assailants to

the victim’s home.       He contended that he entered the victim’s home after

the tan-masked intruder ran out of the house and said they had to leave the

scene. He testified the keys in his pocket were his but that the watch was

not. He suggested the watch was planted on him by the police.

       At the conclusion of the trial, the jury found Appellant guilty of

aggravated assault, burglary, robbery, aggravated assault with a deadly

weapon, terroristic threats, and unlawful restraint.      On October 22, 2009,

the trial court sentenced Appellant to an aggregate term of imprisonment of

twelve to twenty-four years followed by five years’ probation.1

       Appellant filed a direct appeal asserting insufficiency and weight of

evidence claims as well as error relating to a jury instruction.       This Court

affirmed his judgment of sentence on August 31, 2010, and our Supreme

Court denied his appeal on February 2, 2011.
____________________________________________


1
 Appellant’s sentence included a second strike mandatory sentence of ten to
twenty years in prison. See 42 Pa.C.S.A. § 9714.



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      On February 24, 2011, Appellant filed his first PCRA petition. Among

the claims asserted was ineffectiveness of trial counsel for failing to call the

reporting eyewitness to the assault, Dayon Chambers (“Chambers”),

claiming Chambers would have corroborated Appellant’s testimony that

Appellant was not one of the two men who assaulted the victim.

      The trial court dismissed Appellant’s petition on May 25, 2011. This

Court affirmed on May 4, 2012, finding that Appellant’s claims lacked

arguable merit or were waived and that Appellant could not show he was

prejudiced by any error or omission on the part of trial counsel in light of the

compelling evidence of guilt presented at trial.

      Appellant filed a second PCRA petition on January 17, 2013, claiming

he possessed “after-discovered evidence” sufficient to circumvent the PCRA’s

one-year time bar. Specifically, Appellant claimed an affidavit obtained from

Chambers indicated that Appellant attempted to rescue the victim, that the

police fabricated Appellant’s role in the assault, and that the Commonwealth

purposely did not call Chambers as a witness.        The PCRA court rejected

Appellant’s claimed exception to the PCRA’s time bar and dismissed the

petition as untimely, finding Chambers’ existence as a witness was not after-

discovered evidence, as illustrated by the fact Appellant previously claimed

trial counsel ineffectiveness for failing to call Chambers as a witness.     On

August 24, 2013, this Court affirmed, agreeing that there were no “new

facts” and the petition was time-barred.


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       On January 8, 2014, Appellant filed a third PCRA petition, again

claiming after-discovered evidence. The PCRA court appointed counsel who

filed an amended and a second amended petition.              The PCRA court

dismissed Appellant’s second amended petition as untimely and this Court

affirmed on July 16, 2015. Our Supreme Court denied Appellant’s petition

for allowance of appeal on March 30, 2016.

       At issue in the current appeal is the dismissal of Appellant’s fourth

PCRA petition filed on October 27, 2016, in which he asserted a Brady

violation.2-3   The PCRA court issued its notice of intention to dismiss and

Appellant filed objections.      By order entered December 1, 2016, the court

dismissed the petition as untimely filed.        This appeal followed.   Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Appellant asks us to consider two issues, which we repeat here

verbatim:


____________________________________________


2
    Brady v. Maryland, 373 U.S. 83 (1963).
3
   While the petition was titled an amended petition, the original fourth
petition was erroneously filed in federal court. As the PCRA court explained
in its Rule 1925(a) opinion, the court was unaware of the original petition—
asserting previous counsel’s ineffectiveness—until Appellant attached it to
his objections to the court’s Rule 907 notice of intention to dismiss.
However, because the court found the petition was untimely and was not
saved by any statutory exception, the court declined to address whether the
issue raised in the original fourth PCRA petition was waived. PCRA Court
Rule 1925(a) Opinion, 5/11/17, at 3, n.3.




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      1. Did the PCRA Court err in dismissing Appellant’s PCRA Petition
         raising an illegal sentence that PCRA Counsel failed to raise
         when petitioner asked counsel; “Was his sentence illegal?”
         Also after explaining to the court that he could not have
         discovered that his sentence was illegal not just according to
         a decision in “Alleyene”, but also being found innocent of all
         gun charges to be sentenced under the mandatory sentence
         statues of 9712 and 9714, all due to S.C.I Greenburg’s
         closing, not being able to do any research due to the prison
         library being closed from November 2012 till closing in June
         2013 during the ruling of “Alleyene” in January 2013; and
         after Appellant’s tranfer in May 2013 to S.C.I. Greene where
         this institution continuously cancels the library and fails to up-
         date their research software?

      2. Did the PCRA court err in dismissing Appellant’s petition
         based on an “Unreasonable Application” of lawon the “Brady”
         violation claim petitioner raised, that the court cannot dismiss
         a “Brady” claim for?

Appellant’s Brief at 3.

      We begin by setting forth our standard of review. “In reviewing the

denial of PCRA relief, we examine whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Fears,

86 A.3d 795, 803 (Pa. 2014) (internal quotation marks and citation

omitted).

      Before addressing the merits of Appellant’s issues, we must determine

whether either the PCRA court or this Court has jurisdiction over Appellant’s

fourth PCRA petition. As noted above, our Supreme Court denied Appellant’s

petition for allowance of appeal on February 2, 2011. Appellant did not seek

a writ of certiorari to the United States Supreme Court.              Therefore,

Appellant’s judgment of sentence was final on May 3, 2011, ninety days

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after our Supreme Court denied his petition for allowance of appeal.           See

U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3).

        In accordance with 42 Pa.C.S.A. § 9545(b)(1), a PCRA petition,

“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 [an exception].”             Further, “[a]ny petition invoking an

exception in paragraph (1) shall be filed within 60 days of the date the claim

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

        Again, Appellant’s judgment became final on May 3, 2011.               The

petition at issue was filed on October 27, 2016, more than five years after

his judgment became final. As our Supreme Court has explained, timeliness

of a PCRA petition is a jurisdictional requisite. Commonwealth v. Cox, 146

A.3d 221, 227 (Pa. 2016).          Because Appellant’s petition was filed well in

excess of one year after his judgment became final, his petition is untimely

unless it alleges and Appellant proves an exception to the PCRA’s time bar.

        Appellant’s fourth PCRA petition, filed erroneously in federal court but

later attached to his objections to the PCRA court’s Rule 907 notice, 4 claimed

an illegal sentence under Alleyne v. United States, 133 S.Ct. 2151 (2013).

Appellant mistakenly believed that he received an enhanced sentenced

under 42 Pa.C.S.A. § 9712, relating to commission of certain offenses with a

____________________________________________


4
    See n. 3, supra.



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firearm,    a   provision    that    has       been   found   unconstitutional.    See

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). However,

Appellant’s mandatory ten- to twenty-year sentence for aggravated assault

was not imposed under § 9712. It was imposed under 42 Pa.C.S.A. § 9714,

based on Appellant’s prior conviction for a crime of violence.               Therefore,

Alleyne is not implicated as Alleyne itself announced that it did not apply

to prior convictions. See Alleyne, 133 S.Ct. at 2160, n.1. Therefore, even

if Appellant had properly filed the petition with the PCRA court, Alleyne

would not afford Appellant any basis for relief.5

       In his amended fourth PCRA petition, Appellant asserts a Brady claim

stemming from the Commonwealth’s purported withholding of exculpatory

evidence, i.e., the testimony of Chambers and the existence of other

witnesses who were attending a barbecue at Chambers’ home at the time of

the assault. Appellant relies on Dennis v. Sec’y, Pennsylvania Dep’t of

Corr., 834 F.3d 263 (3d Cir. 2016), claiming it precludes the Commonwealth

from injecting a due diligence element into a Brady challenge.               First, this

____________________________________________


5
  Moreover, while this Court has held that Alleyne applies retroactively on
direct appeal, we have declined to construe that decision as applying
retroactively to cases during PCRA review. See Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014). Further, to the extent Appellant
suggests that, as a legality of sentence issue, his claim is not waivable,
Appellant ignores the fact that this Court does not have jurisdiction over a
legality of sentence challenge if the PCRA petition asserting that challenge is
untimely, which Appellant’s fourth PCRA petition is. Id.




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Court is not bound by a decision from the Third Circuit.           See, e.g.,

Commonwealth v. Sauers, 159 A.3d 1, 9 (Pa. Super. 2017) (decisions of

federal courts are not binding on state courts, absent a pronouncement from

the United States Supreme Court).       Second, as a circuit court decision,

Dennis clearly does not announce a retroactive constitutional right

recognized by either our Supreme Court or the United States Supreme Court

that could serve as an exception to the PCRA’s time bar under 42 Pa.C.S.A.

§ 9545 (b)(1)(ii).   Moreover, the court in Dennis found the due diligence

argument waived for failure to raise it until appeal.   Dennis, 834 F.3d at

289. Finally, as the PCRA court recognized, the issue before the PCRA court

in Appellant’s case was previously addressed by this Court in affirming the

dismissal of Appellant’s third PCRA petition. As we stated at that time:

      The burden is on Appellant to establish he acted diligently and,
      therefore, the burden is on Appellant to prove Chambers would
      not have revealed this information had he been asked. See 42
      Pa.C.S.A. § 9545(b)(1)(ii); Commonwealth v. Bennett, 930
      A.2d 1264, 1270 (Pa. 2007) (petition must allege and prove the
      facts were “unknown” to him and could not have been
      ascertained through the exercise of due diligence). Appellant
      procured two other affidavits from Chambers and offers no
      explanation as to why he could not have procured a third
      affidavit to explain Chambers’ failure to mention the 10-12
      people that were at his house at the time of the incident.

PCRA Court Rule 1925(a) Opinion, 5/11/17, at 5 (quoting Commonwealth

v. Johnson, 1858 WDA 2014, supra, at 12, n. 9).

      We find the PCRA court correctly concluded that Appellant’s petition

was untimely and was not saved by any exception to the PCRA’s time bar.


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Because the findings of the PCRA court are supported by the record and are

free from legal error, we affirm the December 1, 2016 order dismissing as

untimely Appellant’s fourth PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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