J-S11020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

KEVIN F. JOHNSON

                          Appellant                   No. 1368 EDA 2017


             Appeal from the PCRA Order entered March 3, 2017
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-1108001-1986


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 21, 2018

      Appellant, Kevin F. Johnson, appeals from the March 3, 2017 order

entered in the Court of Common Pleas of Philadelphia, denying his second

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

      The PCRA court summarized the underlying facts as follows:

            In October 1986, the decedent in this matter, Lyndon
      “Cowboy” Morris was selling drugs from a second floor bedroom
      that he rented from Opal Nickson. The decedent was assisted by
      James Smith, who was the doorman. Smith would run money up
      to the decedent and cocaine down to the buyers.

            On the night of the incident, Nickson, [Elisha] Bennett,
      James Smith and Angelo Smith were smoking marijuana and using
      cocaine in a second floor bedroom when James Smith went
      downstairs to answer a knock at the front door. Upon answering
      the door, Smith encountered [Appellant] who was armed with a
      black revolver, and his cohort, who was armed with a sawed-off
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      shotgun. [Appellant] pointed his gun at Smith’s head and his
      cohort shoved the shotgun into Smith’s back. The gunmen
      demanded that Smith get Morris to open the front bedroom door
      where Morris was located. When the men reached the second
      floor, [Appellant] proceeded to the back bedroom where he
      pointed his gun and ordered Nickson, Bennett, and Angelo Smith
      to lie down on the floor.       Both Nickson and James Smith
      recognized [Appellant] from the neighborhood. Smith tried to get
      Morris to open the door to no avail. The male holding the shotgun
      began kicking the door and Morris then opened it slightly.
      [Appellant’s] cohort fired his weapon through the open door and
      struck Morris in the lower abdomen. [Appellant] then came
      running down the hall and repeatedly fired his gun into the
      bedroom, striking the decedent in the chest. [Appellant] then
      entered the bedroom, took decedent’s money and drugs and both
      men fled the scene.

             At trial, James Smith, Nickson, and Bennett each identified
      [Appellant] as the male holding the revolver. James Smith knew
      [Appellant] from seeing him around the neighborhood. Nickson
      also knew [Appellant] from the neighborhood and had seen him
      earlier on the day of the shooting when he pulled his car over to
      speak to a neighbor she was sitting with outside. Bennett was
      also familiar with [Appellant] from seeing him around the
      neighborhood.

             Angelo Smith failed to appear at trial and the
      Commonwealth requested a bench warrant.                  [Appellant]
      presented numerous alibi witnesses who testified that they saw
      [Appellant] at various times throughout the night of the murder
      selling clothes with another male out of the trunk of a car in
      different areas in West Philadelphia. [Appellant] testified detailing
      his timeline throughout the night and the individuals he came in
      contact with at each location.

PCRA Court Opinion, 5/22/17, at 4-5.        The PCRA court also provided the

procedural history of the case that included relevant dates we summarize

here. See id. at 1-2.

      On February 4, 1988, following a bench trial, Appellant was convicted of

first-degree murder. He was sentenced to life without the possibility of parole

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on July 1, 1988. This Court affirmed his judgment of sentence on March 4,

1992, and our Supreme Court denied his petition for allowance of appeal on

September 30, 1992.

       On December 23, 1996, Appellant filed a timely first PCRA petition.1

Following an evidentiary hearing, the PCRA court denied the petition on July

15, 2009. On June 27, 2011, a panel of this Court reversed the PCRA court’s

decision, vacated Appellant’s judgment of sentence, and remanded for a new

trial. The Commonwealth filed a petition for reargument en banc, which was

granted on July 11, 2011. On August 15, 2012, this Court reversed the panel’s

decision and affirmed the July 15, 2009 order of the PCRA court denying

Appellant’s petition. Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super.



____________________________________________


1As this Court explained in Commonwealth v. Voss, 838 A.2d 795 (Pa.
Super. 2003):

       “A petition where the judgment of sentence became final before
       the effective date of the 1995 amendments to the PCRA shall be
       deemed timely if the petitioner’s first petition was filed within one
       year of the effective date of the 1995 amendments to the PCRA.”
       Commonwealth v. Thomas, 718 A.2d 326, 328 (Pa. Super.
       1998); Act of November 17, 1995, P.L. 1118, No. 32 (Spec. Sess.
       No. 1), § 3(1). “Because the effective date of the amendments is
       January 16, 1996, the operative deadline for first-time PCRA
       petitions is January 16, 1997.” Commonwealth v. Crider, 735
       A.2d 730, 732 (Pa. Super. 1999) (citations omitted).

Id. at 799 (brackets omitted).         Therefore, Appellant’s December 23, 1996
petition was timely filed.




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2012) (en banc). Our Supreme Court denied Appellant’s petition for allowance

of appeal on April 3, 2013.

       On July 2, 2014, Appellant filed his second PCRA petition, which is the

subject of this appeal.      On January 21, 2016, the Pennsylvania Innocence

Project filed an amended petition on Appellant’s behalf.

       On June 22, 2016, the Commonwealth filed a motion to dismiss

Appellant’s amended petition. On March 6, 2017, the PCRA court dismissed

the petition without a hearing.2 This timely appeal following. Both Appellant

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

       Our scope and standard of review is well-settled:

       In PCRA appeals, our scope of review is limited to the findings of
       the PCRA court and the evidence on the record of the PCRA court’s
       hearing, viewed in the light most favorable to the prevailing party.
       Because most PCRA appeals involve questions of fact and law, we
       employ a mixed standard of review. We defer to the PCRA court’s
       factual findings and credibility determinations supported by the
       record. In contrast, we review the PCRA court’s legal conclusions
       de novo.

Commonwealth v. Reyes-Rodrigues, 111 A.3d 775, 779 (Pa. Super. 2015)

(internal citations and quotations omitted).




____________________________________________


2Although not included in the PCRA court’s procedural summary, we note that
Appellant filed a response to the Commonwealth’s motion to dismiss. On
January 19, 2017, the PCRA court gave notice pursuant to Pa.R.Crim.P. 907
of its intention to dismiss the petition without a hearing.



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      In his Rule 1925(b) statement of errors complained of, Appellant raised

fourteen errors. In his brief filed with this Court, he condenses those claimed

errors into three issues as follows:

      I.     Evidentiary Hearing. Whether the PCRA court erred in
             dismissing [Appellant’s] PCRA petition without holding an
             evidentiary hearing where:

                    a. The dismissal was based on the PCRA court’s
                       presumption that a convicted defendant claiming
                       innocence is on notice of the potential for new
                       evidence from the time of his trial, a presumption
                       contrary to precedent from this Court and the
                       Pennsylvania Supreme Court; and

                    b. [Appellant] presented issues of material fact as to
                       his decades-long diligence in uncovering new facts
                       and evidence of government interference?

      II.    Actual Innocence. Whether [Appellant’s] credible claim of
             actual innocence acts a gateway to overcome procedural
             bars and allow a decision on the merits of his claim?

      III.   Interpretation of the Government Interference
             Exception to the PCRA’s Time Bar.2             Are the
             Pennsylvania Supreme Court’s decisions importing a due
             diligence inquiry into the governmental interference
             exception to the PCRA’s one-year time for filing claims
             wrongly decided?

             2
               [Appellant] acknowledges this Court is constrained from overturning
             this precedent. This issue is raised for purposes of preservation for any
             further appeal.

Appellant’s Brief at 4-5.

      Before we may entertain the merits of Appellant’s issues, we must

consider whether we have jurisdiction to do so. “The PCRA’s time restrictions

are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

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Court nor the [PCRA] court has jurisdiction over the petition.         Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady3 claim separate from consideration of its timeliness).

         As required by 42 Pa.C.S.A § 9545(b), any PCRA petition, including a

second or subsequent petition, must be filed within a year of the time the

petitioner’s judgment of sentence becomes final, unless the petition alleges

and the petitioner proves one of three exceptions.        As noted above, our

Supreme Court denied Appellant’s petition for allowance of appeal on

September 30, 1992.         Because he did not seek certiorari from the United

States Supreme Court, his judgment of sentence was final ninety days later,

on December 29, 1992.            U.S.Sup.Ct.R. 13.   Therefore, because this is

Appellant’s second petition, to be timely, Appellant had to file his petition on

or before December 29, 1993. This petition was filed on July 2, 2014, more

than twenty years after his judgment of sentence became final. Therefore,

the petition is patently untimely and we may not consider it unless Appellant


____________________________________________


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


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has presented and proved an exception to the PCRA’s timeliness requirement.

42 Pa.C.S.A. § 9545(b)(1).

      Here, Appellant contends his petition is timely in light of the newly-

discovered facts exception or the governmental interference exception.

42 Pa.C.S.A. § 9545(b)(1)(ii), (i). In either instance, the petition must have

been filed within 60 days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).

      As the PCRA court recognized, to be granted a new trial based on newly-

discovered facts, a petitioner must demonstrate that facts upon which the

claim is based were unknown to the petitioner and could not have been

ascertained by exercising due diligence. PCRA Court Opinion, 5/22/17, at 8

(citing 42 PaC.S.A. § 9545(b)(1)(ii)). The PCRA court explained:

      Due diligence demands that the defendant take reasonable efforts
      under the particular circumstances to uncover facts that may
      support his claim for collateral relief. A due diligence requirement
      is fact sensitive and dependent upon the circumstances present.
      A defendant cannot claim he has discovered new evidence simply
      because he had not been expressly told of that evidence.
      Commonwealth v. Padillas, 997 A.2d 356, 364 (Pa. Super.
      2010. Likewise, a defendant who fails to question or investigate
      an obvious, available source of information cannot later claim that
      evidence from that source constitutes newly discovered evidence.
      Id.

Id. at 9 (citations omitted).

      Appellant claims newly-discovered facts in the form of statements

obtained in 2014 from four witnesses, three of whom identified Appellant at

trial as the individual with the revolver on the night of the October 1986


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shooting.   In those four statements, the witnesses recanted their pre-trial

statements and their trial testimony, claiming they were coerced by

investigators to identify Appellant or face various consequences. However,

one of those witnesses, James Smith, had already recanted his testimony in

an affidavit obtained in 2001, a portion of which we repeat here verbatim:

      While I was at the police station one of the detective showed me
      a couple of photographs. He told me that everyone else had pick
      one of photographs as one of the robbers who killed cowboy. I
      went along with picking that photograph out too because the
      detective told me if I didn’t pick out one of these picture I would
      be going to jail for murder. That is why I did it. After that I went
      to testify at the trial. At the trial I identify Kevin Johnson as the
      man who had the pistol. I really could not recognize kevin as
      being the person who had the shotgun pistol but I said it away.
      By then cowboy brother had threaten my life. I can’t say that I
      didn’t have a chance to tell the police that it was not kevin, I just
      went along with it because they told me that every one else did.

Id. at Exhibit “D” (Affidavit of James Smith, 8/7/01, at 1).

      As the PCRA court observed:

      The argument at trial in this case was a misidentification based on
      suggestion and coercion by police. [Appellant] was on notice prior
      to trial that there were four identification witnesses. Since this
      incident occurred in a drug house, the defense theory at trial was
      that the witnesses were fearful of prosecution and went along with
      suggestive identifications.       This is not new information to
      [Appellant]. Certainly, a reasonable investigation in the close to
      three decades since this murder could have uncovered these
      newly made recantations and allegations of coercion sooner. At
      the very least, [Appellant] knew of this new version of events as
      of August 2001 when James Smith gave his first recantation
      alleging police coercion during the investigation. Clearly, as of
      that date [Appellant] was on notice that he should investigate the
      other eyewitnesses from trial. In fact, one of the clams in
      [Appellant’s] current petition is that prior PCRA counsel was
      ineffective for failing to interview Opal Nickson, [Elisha] Bennett,


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      and Angelo Smith when counsel learned of the police misconduct
      set forth in James Smith’s recantation of August 7, 2001.

      Nickson, Bennett, and Smith all indicate in their affidavits that
      they would have been willing to recant sooner had someone
      reached out to them.

Id. at 10. See Exhibits “A”-“C” (Affidavits of Angelo Smith, Elisha Bennett,

and Opal Nickson, respectively).

      We agree with the PCRA court’s findings. While Appellant challenges

the PCRA court’s findings as invoking a “notice presumption” going back to

the time of trial, we find any such characterization unwarranted here. We

note in particular that James Smith indicated in his 2001 affidavit that he was

told the other witnesses had all identified Appellant. Certainly, interviewing

the other witnesses at that time to determine whether they were similarly

“coerced” was warranted, and information could have been sought from those

witnesses with reasonable diligence.       As the PCRA court recognized, “a

defendant who fails to investigate an obvious, available source of information

cannot later claim that evidence from that source constitutes newly discovered

evidence.”   PCRA Court Opinion, 5/22/17, at 9 (citing Commonwealth v.

Padillas, 997 A2d 356, 364 (Pa. Super. 2010)).           Finding no merit to

Appellant’s claim of newly-discovered facts, notwithstanding Appellant’s




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detailed summary of his decades-long attempts at self-exoneration,4 we reject

his assertion that his PCRA petition is saved under that exception.5

        In the second part of his first issue, Appellant suggests his petition is

saved from the PCRA’s time bar based on the governmental interference

exception.     42 Pa.C.S.A. § 9545(b)(1)(i).       As the PCRA court observed,

Appellant’s claim is based on his assertion that “the Commonwealth failed to

disclose that police pressured the eyewitnesses to cooperate and suppressed

pieces of exculpatory and impeachment evidence.”           PCRA Court Opinion,

5/22/17, at 13. The court then identifies three Brady violations raised by

Appellant6 and notes that, while a Brady violation may fall within the



____________________________________________


4   See Appellant’s Brief, Exhibit 4.

5  We also agree with the PCRA court’s rejection of “PCRA counsel
ineffectiveness” as a newly-discovered fact.        See PCRA Court Opinion,
5/22/17, at 11-12 (citing Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 785 (Pa. 2000) (previous counsel ineffectiveness “is not the type of after-
discovered evidence encompassed by the exception”).                 See also
Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (citing
Commonwealth v. Lesko, 15 A.3d 345, 367 (Pa. 2011) (“[I]t is well
established that the fact that a petitioner’s claims are couched in terms of
ineffectiveness will not save an otherwise untimely petition from the
application of the time restrictions of the PCRA.”).

6 The three alleged violations related to Angelo Smith’s failure to identify
Appellant in the courtroom and being excused without testifying; Opal
Nickson’s statements to police that that assailant has darker skin than
Appellant; and James Smith’s statement to the prosecutor that he had no
knowledge of some of the information in his second statement and was unsure
of his identification of Appellant’s photograph. PCRA Court Opinion, 5/22/17,
at 13. The PCRA court noted, however, that James Smith identified Appellant
in the courtroom. Id. at n. 4.

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governmental interference exception to the PCRA’s time bar, the petitioner

must prove that the information in support of the claim “could not have been

obtained earlier with the exercise of due diligence.”                Id. (quoting

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)). Because

Appellant failed to prove the information could not have been obtained with

the exercise of due diligence, and in particular could not have been

investigated after James Smith gave his 2001 statement claiming coercion,

Appellant’s reliance on the governmental interference exception “fails for the

same reason as his ‘new fact’ claim.” Id. Again, the PCRA’s time limitations

are jurisdictional and consideration of a Brady claim is separate from

consideration of its timeliness. Stokes, 959 A.2d at 310 (citing Abu-Jamal,

941 A.2d at 1268) (merits of underlying Brady claim not relevant to resolving

timeliness issue under either § 9545(b)(1)(i) or (ii)).

        We find no error of law in the PCRA court’s disposition of Appellant’s

newly-discovered facts exception or his governmental interference exception.

Further, we find no abuse of discretion in the PCRA court’s dismissal of

Appellant’s petition without an evidentiary hearing. “With respect to the PCRA

court's decision to deny a request for an evidentiary hearing, or to hold a

limited evidentiary hearing, such a decision is within the discretion of the PCRA

court    and   will   not   be   overturned   absent   an   abuse   of   discretion.”

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citing

Commonwealth v. Reid, 99 A.3d 470, 485 (Pa. 2014)).                       See also


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Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008) (PCRA

court may decline hearing if there is no genuine issue concerning a material

fact, petitioner is not entitled to PCRA relief, and no purpose would be served

by conducting further proceedings). In light of Appellant’s failure to prove an

exception to the PCRA’s time bar, depriving the PCRA court of jurisdiction to

consider the merits of Appellant’s claims, there was no reason to hold an

evidentiary hearing. Appellant’s first issue fails.

      In his second issue, Appellant asserts that his claim of actual innocence

“acts as a gateway to overcome procedural bars and allow a decision on the

merits of his claims[.]” Appellant’s Brief at 5. This Court rejected the same

argument in Commonwealth v. Brown, 143 A.3d 418 (Pa. Super. 2016). In

Brown, we acknowledged the United States Supreme Court’s holding that

petitioners asserting a convincing actual innocence claim may invoke a

miscarriage of justice exception to overcome a federal habeas corpus statute

of limitations. However, the holdings in habeas corpus cases are irrelevant to

our construction of the plain language of the PCRA’s timeliness provisions. Id.

at 420-21. Appellant’s second issue lacks merit.

      Appellant presents a third issue in his brief, challenging our Supreme

Court’s decisions regarding due diligence in claims of governmental

interference under the PCRA. Appellant’s Brief at 5. Appellant acknowledges

that this Court “is constrained from overruling this precedent.” Id. at n. 2.

Therefore, no discussion is warranted.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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