J-S14045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
JOHNNY McBRIDE,                            :
                                           :
                   Appellant               :           No. 1578 EDA 2014

             Appeal from the PCRA Order entered on May 2, 2014
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0008561-2007;
                            CP-51-CR-1003061-2001

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 30, 2015

        Johnny McBride (“McBride”) appeals the Order dismissing his first

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1      We

affirm.

        The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we incorporate herein by reference for purposes of this

appeal. See PCRA Court Opinion, 8/5/14, 1-3.

        On appeal, McBride raises the following issue for our review:

“Whether the PCRA court erred by denying relief because [] after[-]

discovered exculpatory evidence concerning police misconduct concerning

police officers Jeffrey Cujdik [“Officer Cujdik”] and Robert McDonald[,] and

the[ir] confidential informant[,] in the case docketed at CP-51-CR-0008561-

1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S14045-15


2007, is now available[?]”     Brief for Appellant at 2 (some capitalization

omitted).

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      McBride contends that the “confidential informant is now available and

would testify that he does not know [McBride], that this evidence would

have vindicated him [of his conviction,] and that he would not have been

found in violation of his probation [].”   Brief for Appellant at 10.   McBride

asserts that, based on this after-discovered evidence, he is entitled to a new

trial. Id.

      McBride further claims that Officer Cujdik was “making up information

regarding probable cause for arrest[,]” and that, pursuant to a news article

published by the Daily News in 2009, a corruption investigation is underway

regarding these allegations.     Id. at 11.    McBride also claims that the

Philadelphia Inquirer published an article in 2012 regarding the ongoing

corruption investigation, wherein it revealed that the City of Philadelphia had

settled twenty-one civil lawsuits against Officer Cujdik and Officer Richard

Cujdik, at an average of $40,000 each. Id. at 14. McBride contends that

this information was unavailable to him before and during his trial. Id. at


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J-S14045-15


12.   McBride asserts that he could have used this information not only to

impeach Officer Cujdik, but also to support a Confidential Informant (“CI”)

motion, a motion to suppress, or to demonstrate that Officer Cujdik lied

about the actions of the CI in this and other cases.     Id. at 13.   McBride

claims that, if the fact-finder was aware of Officer Cujdik’s practice of lying

about the use of a CI in the past, the verdict would have been different. Id.

McBride contends that, although his defense counsel requested information

demonstrating that Officer Cujdik is corrupt from the Commonwealth in

2009, the Commonwealth suppressed this information and did not disclose it

to McBride, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Brief

for Appellant at 13.

      McBride asserts that he is entitled to relief under the due process

clauses of both the United States and Pennsylvania Constitutions. Id. at 15.

McBride also claims that the violation of his federal and state constitutional

rights entitles him to federal and state habeas corpus relief, and to the

extent that the PCRA abrogates these rights, it should be deemed

unconstitutional. Id. at 15-16. Finally, McBride points out that he filed his

pro se PCRA Petition in 2010, and contends that he should not be denied

post-conviction relief because he is no longer serving a sentence. Id. at 17.

      The PCRA court addressed McBride’s claim, set forth the relevant law,

and determined that McBride is not entitled to PCRA relief because, at the

time the PCRA court dismissed his Petition, McBride was no longer serving a



                                  -3-
J-S14045-15


sentence of imprisonment, probation or parole for the crimes in the instant

case. See PCRA Court Opinion, 8/5/14, 3-4. Additionally, the PCRA court

determined that McBride is not entitled to PCRA relief because he failed to

prove any entitlement to a statutory exception to the PCRA’s timeliness

requirements. See id. at 4-6. We agree with the sound reasoning of the

PCRA court and affirm on this basis. See id. at 3-6.

     Order affirmed.

     Olson, J., joins the memorandum.

     Donohue, J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2015




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                            IN THE COURT OF COMMON PLEAS
                                 PHILADELPHIA COUNTY
                                CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                                  CP-51-CR-0008561-2007
                                                              CP-51-CR-I003061-2001


                                     FILED                        CP-51-CR-0008561_2007 Comm. v. Mcbride, Johnny
                                                                                     Opinion




                                 .crim:a~ i~p~e~l: Unit
                      V.
                                                                      1111111111111111111111111
                               First JudicIa! Districfof PA                    7181940751

                                                       SUPERIOR COURT OF PENNSYLVANIA
             JOHNNY Mc BRIDE                                   1578 EDA 2014

                                          OPINION

BRIGHT, J.

       On August 16, 2001 Appellant was arrested and charged with two counts of Corrupting

Minors and one count each ofIndecent Assault and Criminal Solicitation. On April 10,2002 he

appeared before this Court and pled guilty to those crimes. On June 26, 2002 Appellant was

sentenced to two concurrent terms of imprisonment of not less than three (3) months nor more

than twenty-three (23) months plus three (3) years probation for Corrupting Minors and a

concurrent term of two years probation for Indecent Assault; no further penalty was imposed for

Criminal Solicitation. On June 23, 2005 Appellant was found to be in violation of probation and

he was resentenced to three consecutive years of probation. On June 10,2008 Appellant again

was found to be in violation of probation as a result of new conviction for Possession with Intent

to Deliver a Controlled Substance at CP-51-CR-0008561-2007 before the Honorable Thomas

Dempsey, and he was resentenced to concurrent terms of imprisonment of not less than one (1)

year nor more than two (2) years plus two (2) years probation. Appellant did not take a direct

appeal to the Superior Court of Pennsylvania.
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        On August 27, 2010 Appellant filed the instant Petition pursuant to the Post Conviction

Relief Ad (hereinafter referred to as PCRA) pro se, and PCRA Counsel was appointed. On

February 19,2013 PCRA Counsel filed an Amended Petition and on February 27,2014 the

Commonwealth filed a Motion to Dismiss. On March 25,20114 Notice pursuant to

Pa.R.Crim.P. 907 was sent to Appellant. On May 2,2014 the PCRA Petition was dismissed.

This timely appeal followed on May 20,2014.

       Pursuant to Pa.R.A.P. 1925(b) Appellant was instructed to file a Statement of Matters

Complained Of On Appeal. Appellant responded claiming that the PCRA Court erred by

denying relief as he is entitled to an exception to the time-bar requirements of 42 Pa.C.S.A.§9543

as he has newly discovered exculpatory evidence that would have vindicated him in the case

charging him with Possession with Intent to Deliver a Controlled Substance at CP-51-CR-

0008561-2007 and that he would therefore not have been found in violation of probation in the

instant case.

                                              FACTS

        The Commonwealth summarized the facts at the time of the guilty plea. N.T.2

1/30/2004. On August 6,2001, Complainant AR, age sixteen, was in the 4500 block of Benner

Street, Philadelphia, P A when Appellant approached her in his jeep and told her that one of her

friends was in trouble at the playground and he offered to drive her to that location.   AR got into

Appellant's vehicle but instead of going to the playground Appellant drove to a parking lot at

4800 Comply Street and told her that he wanted to talk.     AR demanded to be taken back to



142 Pa.C.S.A.§9541, el seq.
2"N.T." refers to the Notes of Testimony taken at trial before the Honorable Gwendolyn N.
Bright on April 10, 2002.
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Benner Street and she attempted to exit the vehicle but found the doors were locked and that she

was unable to unlock the doors.       Appellant pulled a large sum of money from his pocket and

offered her money to have sex with him and AR refused. Appellant attempted to untie the top of

AR's shorts, put his hand into her panties, and then placed AR's hand on his crotch. He told AR

that he wanted to perform oral sex on her and promised AR two hundred dollars ($200) for each

time she reached orgasm. Again, AR refused and renewed her demand to be returned to Benner

Street.    Eventually, Appellant took the complainant back to Benner Street and told her not to

report the incident saying that if she ever needed money or wanted marijuana he would supply it

to her.

Sometime after the incident, AR told her girlfriend, Complainant CD, what happened and CD

told AR that Appellant made sexual advances toward her as well.         CD lived across the street

from Appellant and on August 16,2001 the two girls were at CD's house and the girls observed

Appellant across the street staring in their direction. They then contacted police and Appellant

was arrested.

                                             DISCUSSION

          Appellant complains that the COUli erred in denying PCRA relief. This claim is without

merit.

          42 Pa.C.S. §9543 provides, in pertinent part, as follows:

          § 9543. Eligibility for relief

          (a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead
          and prove by a preponderance of the evidence all of the following:

          (l)      That the petitioner has been convicted of a crime under the laws of this
                Commonwealth and is at the time relief is granted:
                a. cun-ently serving a sentence of imprisonment, probation or parole for the crime"

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At the time of decision on Appellant's PCRA Petition he was not serving a sentence of

imprisomnent, probation, or parole for crimes in the instant case. He is therefore not eligible for

PCRA relief. Error was not committed.

       Moreover, Appellant's Petition is not timely and he has failed to prove entitlement to a

statutory exception to the time-bar of 42 Pa.C.S. §9545(b)(1). 42 Pa.C.S. §9545 provides:

       "§ 9545. Jurisdiction and proceedings

       (a) Original jurisdiction.--Original jurisdiction over a proceeding under this subchapter
       shall be in the court of common pleas. No court shall have authority to entertain a request
       for any form of relief in anticipation of the filing of a petition under this subchapter.

       (b) Time for filing petition.--

       (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.

       (3) For purposes of this subchapter, a judgment becomes 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."




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The statutory time restrictions under the PCRA are mandatory and jurisdictional in nature and

    may not be altered to reach the merits of the claims raised in the Petition.   Commonwealth v.

    Cintora, 69 A.3d 769 (Pa. Super. 2013).

           In the case at CP-51-CR-1003061-200l, Appellant was resentenced on June 26,2002

    after a violation of probation and he did not file a direct appeal to the Superior Court of

    Pelllsylvania. The sentence in that case became final on July 26,2002, i.e., thirty (30) days

    following the imposition of sentence. Pa.R.A.P.903(A). In the case at CP-51-CR-0008561-

    2007, Appellant was sentenced on April 25, 2008. The sentence in that case therefore became

    final on May 27,2008.     Appellant filed the instant PCRA Petition on August 27, 2010, well in

    excess of the one year limitation of 42 Pa.C.S. §9545(b)(1).

           Neveliheless, Appellant asserts that exculpatory evidence concerning the confidential

    informant in the drug case at CP-51-CR-0008561-2007 is 'newly discovered' and that he would

    not have been found in violation of probation in the case at CP-51-CR-1003061-2001 had this

evidence been available to him at the time of the Gagnon II hearing held in that case. He also

asserts the governmental interference exception for an alleged failure to provide this 'newly

    discovered' 'exculpatory' evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963). These

assertions are baseless.

           Appellant predicates his claims to an exception to the time limitations on a newspaper

article that appeared in the Philadelphia Daily News on February 9, 2009 which exposed an FBI

    investigation into alleged police misconduct of Philadelphia Police Officers Jeffrey Cujdik and

Robert McDonald who were involved in the drug case which precipitated the direct violation of

Appellant's probation. The allegation was that Officers Cujdik and McDonald were fabricating


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evidence in order to obtain convictions in drug cases they investigated. The gravamen of

Appellant's position is that the confidential informant involved in the drug case is now available

and would testify that he does not know Appellant. No affidavit from the confidential

informant, or other evidence, has been presented to suppOli this assertion and the FBI

investigation did not result in charges against Cujdik and McDonald. There has been no official

confirmation of the extent of the investigation and Appellant has failed to demonstrate that there

is any after-discovered, exculpatory evidence that would provide a basis for an exception to the

time-bar of the PCRA. Error was not committed.

        Moreover, 42 Pa.C.S. §9545(b)(2) provides that any petition invoking an exception

provided in 42 Pa.C.S. 9545(b)(1) shall be filed within 60 days of the date the claim could have

been presented. Appellant filed the instant pro se PCRA Petition on August 27, 2010, more than

60 days after the information regarding the police officers was made public. Error was not

committed.

                                         CONCLUSION

     For the foregoing reasons error was not committed and the Order granting Post-conviction

DNA testing as prayed should be affirmed.

                                                             BY THE COURT




DATE:   rr!y/1 y
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