Com. v. Johnson, A.

• Court: Superior Court of Pennsylvania
• Decided: March 8, 2021
• Docket: 911 EDA 2020
• Status: Unpublished

Opinion

J-S50007-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTON JOHNSON : : Appellant : No. 911 EDA 2020

Appeal from the PCRA Order Entered February 18, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006415-2011

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 8, 2021

Appellant, Anton Johnson, appeals from the post-conviction court’s

February 18, 2020 order denying his untimely petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

The facts underlying Appellant’s conviction are not germane to the

disposition of his appeal. The PCRA court summarized the relevant procedural

history of this case as follows:

After a jury trial, [Appellant] was convicted of aggravated assault on Radnor Township Police Officer, Steven Banner, after he attempted to strike him with his vehicle during a traffic stop. [Appellant] was sentenced to 120-240 months’ imprisonment as a result of his second strike under 42 Pa.C.S.[ §] 9[7]14 (sentences for second and subsequent offenses).

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* Retired Senior Judge assigned to the Superior Court. J-S50007-20

[Appellant] filed a direct appeal wherein he challenged the sufficiency of the evidence presented. After review, his conviction was affirmed [by the Superior Court, and t]he Supreme Court denied allowance of appeal on August 21, 2014.[1] On January 29, 2015, [Appellant] filed a pro se PCRA petition, [his first,] and Stephen Molineux, Esquire, was appointed to represent him. On February 1, 2016, Attorney Molineux filed an amended PCRA petition.

The PCRA court conducted evidentiary hearings on [Appellant]’s amended petition on July 14 and August 10, 2017. After the passing of the Honorable James F. Nilon, the case was reassigned to this [c]ourt.

Thereafter, on May 23, 2018, this [c]ourt entered an order denying the petition. [Appellant] appealed, raising four issues for review; all of the claims concerned trial counsel’s effectiveness.

This [c]ourt issued its 1925(a) opinion on August 3, 2018. On January 7, 2019, the … Superior Court affirmed the dismissal of the [p]etition, adopting this [c]ourt’s opinion as their own for purposes of further appellate review.[2]

On August 21, 2019, [Appellant] filed his second [pro se] PCRA Petition [(hereinafter “the Petition”)]. [Appellant] alleged that PCRA counsel was ineffective in his representation of [Appellant] at his PCRA hearing and that his sentence is illegal. This [c]ourt issued a Notice of Intent to Dismiss [pursuant to Pa.R.Crim.P. 907,] and [Appellant] filed a timely [r]esponse thereto. On February 18, 2020, the Petition was dismissed, and [Appellant] filed this timely appeal.

PCRA Court Opinion (PCO), 4/17/20, at 1-2.

In his Statement of the Questions Presented section of his brief,

Appellant indicates that he is raising a “layered claim of ineffective assistance

of counsel by appella[te] and trial counsel,” and that the PCRA court erred by ____________________________________________

1 See Commonwealth v. Johnson, 64 A.3d 287 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 97 A.3d 743 (Pa. 2014).

2 See Commonwealth v. Johnson, 209 A.3d 485 (Pa. Super. 2019) (unpublished memorandum).

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dismissing the Petition without a hearing. Appellant’s Brief at 4 (unnecessary

capitalization omitted). We address these claims ad seriatim.

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. Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of the Petition, because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(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

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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). Additionally, any petition attempting to

invoke one of these exceptions “be filed within one year of the date the claim

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

Instantly, Appellant’s judgment of sentence became final in 2014. See

Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (holding a

judgment of sentence becomes final 90 days after our Supreme Court denies

allowance of appeal, which represents the time period a petitioner has to

challenge the Supreme Court’s ruling by writ of certiorari in the United States

Supreme Court). Therefore, the Petition, filed in 2019, is patently untimely.

Accordingly, to have jurisdiction to address the merits of Appellant’s claims,

he must avail himself of an exception to the PCRA’s timeliness requirements

for each claim. The PCRA court found that Appellant “has not alleged any

timeliness exceptions[,]” noting that “post-conviction counsel’s alleged

ineffectiveness is not an exception.” PCO at 4.

In the first section of the Argument portion of his brief, Appellant asserts

prolix claims of the alleged ineffective assistance of prior counsel. See

Appellant’s Brief at 11-30. At no point does Appellant assert or substantiate

a timeliness exception that would permit us to review those claims. “If the

petition is determined to be untimely, and no exception has been pled and

proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

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petition.” Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super.

2008). Moreover, it “is well[-]settled that allegations of ineffective assistance

of counsel will not overcome the jurisdictional timeliness requirements of the

PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

Accordingly, we ascertain no error in the PCRA court’s dismissal of these

claims without a hearing.

In his second argument, Appellant offers affidavits by two, allegedly

newly-discovered eyewitnesses, James Harding and Virgean Jones.

Appellant’s Brief at 31. He contends that the affidavits constitute non-

cumulative, exculpatory evidence that was not discoverable at an earlier time

through the exercise of reasonable diligence, not presented solely for the

purpose of impeaching credibility, and would likely have compelled a different

verdict had the witnesses testified at his trial.3 Id. at 32. Thus, Appellant

ostensibly invokes the newly-discovered evidence exception as set forth in

Section 9545(b)(1)(ii) of the PCRA statute.

3 This echoes the standard for consideration of the merits of an after- discovered evidence claim on collateral review. See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (holding that “to prevail on an after- discovered evidence claim for relief under subsection 9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory evidence has been discovered after trial and could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict”). However, to “qualify for an exception to the PCRA’s time limitations under subsection 9545(b)(1)(ii), a petitioner need only establish that the facts upon which the claim is based were unknown to him and could not have been ascertained by the exercise of due diligence.” Id.

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Apart from these boilerplate assertions, Appellant fails to develop this

argument in any meaningful fashion. Critically, for purposes of Section

9545(b)(1)(ii), he does not explain why these witnesses were not discoverable

at an earlier time through the exercise of due diligence. “For purposes of the

exception to the PCRA’s jurisdictional time-bar under Section 9545(b)(1)(ii),

a petitioner fails to meet his burden when the facts asserted were merely

unknown to him. A petitioner must also explain why his asserted facts could

not have been ascertained earlier with the exercise of due diligence.”

Commonwealth v. Taylor, 933 A.2d 1035, 1040–41 (Pa. Super. 2007)

(cleaned up).

Appellant’s trial concluded in May of 2012, yet he did not present

Harding’s affidavit,4 dated October 4, 2018, until he filed the Petition on

August 21, 2019. Appellant provides no explanation for why it took more than

6 years to obtain that affidavit from Harding, and/or what efforts he undertook

to discover Harding’s versions of events during that time. Accordingly,

Harding’s affidavit cannot satisfy the newly-discovered evidence exception.

As to Jones’ affidavit, Appellant did not present that document to the

PCRA court in the Petition. The first time it appears in the record is in

Appellant’s response to the court’s Rule 907 notice. See Response, 1/27/20,

at Exhibit 1. Jones’ statement is undated, and Appellant provides no indication

as to when he obtained it from her. In any event, Appellant provides no

4 See the Petition, 8/21/19 (attached as an unnumbered Exhibit).

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explanation as to why it took nearly 8 years after his trial to obtain her

statement, and/or what efforts he undertook to discover her account during

that time. Accordingly, he has not demonstrated that he acted with adequate

diligence in obtaining Jones’ affidavit, as required to satisfy the newly-

discovered evidence exception under Section 9545(b)(1)(ii) of the PCRA. As

Appellant has failed to meet any exception to the PCRA’s timeliness

requirements with respect to the two affidavits, we ascertain no error in the

PCRA court’s dismissal of his untimely petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/8/21

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