Com. v. Johnson, A.

Opinion

J-S50029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AARON JOHNSON : : Appellant : No. 806 EDA 2020

Appeal from the PCRA Order Entered January 23, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0704361-1993

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

MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021

Appellant, Aaron Johnson, appeals pro se from the January 23, 2020

order denying his sixth petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

A prior panel of this Court summarized the procedural history of this

case as follows:

On October 5, 1994, a jury convicted Appellant of two counts of robbery, two counts of aggravated assault, criminal conspiracy, and carrying firearms on a public street or in a public place in Philadelphia.[1] On November 29, 1994, the trial court sentenced Appellant to an aggregate term of twenty-five to fifty years’ imprisonment. Appellant filed a post-sentence motion on December 7, 1994, which was denied on April 14, 1995, by operation of law. Appellant did not pursue direct review. Between 1996 and 2007, ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a), 903, and 6108, respectively. J-S50029-20

Appellant filed three PCRA petitions, which were all denied and later affirmed. On April 11, 2011, Appellant filed a fourth pro se serial PCRA petition, which the PCRA court denied as untimely filed on March 14, 2012, after issuing notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907.

Commonwealth v. Johnson, 97 A.3d 797[, 215 EDA 2012] (Pa. Super. [filed February 10,] 2014) (unpublished memorandum at 1).1

1 On June 30, 2009, the victim whom Appellant shot in the neck during the [robbery] died as a result of that gunshot wound. Appellant was charged with criminal homicide at [a separate trial court docket] and was convicted of first-degree murder following a jury trial on May 14–17, 2012....

Commonwealth v. Johnson, 181 A.3d 120, 16 EDA 2017 (Pa. Super. filed

December 4, 2017) (unpublished memorandum at *1). On April 9, 2015,

Appellant filed his fifth PCRA petition, which the PCRA court denied on

November 18, 2016. Appellant filed an appeal to this Court, and on

December 4, 2017, we affirmed the order denying Appellant’s untimely

petition. Id.

On March 19, 2018, Appellant filed his sixth PCRA petition, which

underlies the instant appeal. On December 18, 2019, the PCRA court informed

Appellant of its intent to dismiss Appellant’s PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907. On January 23, 2020, the PCRA court dismissed

Appellant’s petition as untimely and meritless. Appellant filed a notice of

appeal that was docketed in the PCRA court on March 10, 2020.

-2- J-S50029-20

As a general rule, a notice of appeal must be filed within thirty days

from the entry of the order from which the appeal is taken. Pa.R.A.P. 903(a).

Thus, Appellant had to file his appeal on or before February 20, 2020.

However, “the prisoner mailbox rule provides that a pro se prisoner’s

document is deemed filed on the date he delivers it to prison authorities for

mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011).

Although Appellant’s appeal was not docketed until March 10, 2020, the notice

of appeal is dated February 20, 2020. Moreover, the notice of appeal is date-

stamped “Received FEB 21, 2020 Office of Judicial Records Appeals/Post Trial.”

We are satisfied that Appellant placed his notice of appeal in the prison mail

on February 20, 2020, and as such, we conclude that the filing of this appeal

is timely pursuant to the prisoner-mailbox rule.2

On appeal, Appellant raises the following issues, which are set forth

verbatim, as follows:

1. THE PCRA COURT ERRED BY DISMISSING THE PETITION AS TIME BARRED WHERE APPELLANT INVOKED AN EXCEPTION IN ACCORDANCE WITH §9545(b)(1)(ii), §9545(b)(2), and §9543(a)(2)(vi). A CONSTITUTIONAL RIGHT ALSO CONTINUALLY VIOLATED.

2. THE NATURE OF THE AFTER DISCOVERED EVIDENCE PRESENTED BY A.D.A PROSECUTION RICHARD SAX AMOUNTS TO PROSECUTORIAL MISCONDUCT: (thus deemed after discovered facts as recently decided by the Supreme Court.)

____________________________________________

2 The PCRA court did not direct Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

-3- J-S50029-20

3. APPELLANT MOVES THE COURT TO HEAR THE ARGUMENTS HEREIN IN LIGHT OF THE DOUBLE JEOPARDY CLAIM, GOVERNMENT OPPRESSION, AND THE RECENT DECISION IN COMMONWEALTH V. BURTON...(PA. SUPREME COURT).

Appellant’s Brief at 3 (verbatim).

Before we may reach the merits of Appellant’s appeal, we must first

determine if Appellant’s PCRA petition was timely because the PCRA time

limitations are jurisdictional. Commonwealth v. Fahy, 737 A.2d 214, 222

(Pa. 1999). A PCRA petition, “including a second or subsequent petition, shall

be filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S.

§ 9545(b)(1). A judgment of sentence 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.” Id. at § 9545(b)(3). When a petitioner files a

PCRA petition beyond the one-year time-bar, he must plead and prove at least

one of the time-bar exceptions. These exceptions include:

(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.

-4- J-S50029-20

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Previously, a petitioner was required to raise

an exception within sixty days from the date that a claim could have been

raised; however, Section 9545(b)(2) was amended and now provides that a

petitioner has one year rather than sixty days to raise a claim. 42 Pa.C.S.

§ 9545(b)(2) (as amended October 24, 2018, P.L. 894, No. 146, effective in

sixty days). This amendment became effective on December 24, 2018, but it

applies only to claims arising on December 24, 2017, or thereafter. Id.

The record reveals that Appellant’s judgment of sentence became final

on December 29, 1994, thirty days after the trial court imposed sentence, and

the time for filing a direct appeal expired. 42 Pa.C.S. § 9545(b)(3);

Pa.R.Crim.P. 720(A)(3). We note that the PCRA was amended in 1995 to add

the timing requirements of Section 9545(b), and a proviso providing a grace

period for petitioners, such as Appellant, whose judgments of sentence

became final on or before the January 16, 1996 effective date of the

amendments. See Commonwealth v. Alcorn, 703 A.2d 1054, 1057 (Pa.

Super. 1997) (discussing the application of the proviso) (citing the Act of

November 17, 1995, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1)). However,

the proviso applies only to first petitions filed by January 16, 1997. Id.

Because this is Appellant’s sixth petition, and it was filed on March 19, 2018,

the grace period does not apply; Appellant’s sixth petition was patently

untimely.

-5- J-S50029-20

Appellant avers that he satisfied the newly discovered facts exception

enumerated in 42 Pa.C.S. § 9545(b)(1)(ii). Appellant asserts that the

Honorable Anne E. Lazarus was the judge at his criminal trial, and he learned

that Judge Lazarus participated as a member of the panel of this Court in the

memorandum disposing of Appellant’s fifth PCRA petition. Sixth PCRA

Petition, 3/19/18, at ¶ 3 (citing Johnson, 16 EDA 2017 (unpublished

memorandum)). After review, we conclude that Appellant has failed to satisfy

an exception to the PCRA’s time-bar.

First, we note that in his brief, Appellant fails to provide any argument

explaining why Judge Lazarus’s participation on a panel of this Court, which

denied a patently untimely serial PCRA filed twenty years after Appellant’s

criminal trial, could constitute a basis for PCRA relief. Moreover, we also note

that the December 4, 2017 memorandum dismissing Appellant’s fifth PCRA

petition predates December 24, 2017, which is the date enumerated in the

amended version of Section 9545. 42 Pa.C.S. § 9545(b)(2) (as amended

October 24, 2018, P.L. 894, No. 146, effective in sixty days). Thus, Appellant

was required to file his PCRA petition and raise this exception within sixty days

from December 4, 2017, or in other words, before Friday, February 2, 2018.

As stated, Appellant did not file his sixth PCRA petition until March 19, 2018.

-6- J-S50029-20

Therefore, Appellant failed to satisfy an exception that would confer

jurisdiction upon the PCRA court in his patently untimely sixth PCRA petition.3

Accordingly, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that the PCRA court lacks jurisdiction to hear

an untimely petition). Likewise, we lack jurisdiction to reach the merits of the

appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super.

2002) (holding that this Court lacks jurisdiction to reach merits of an appeal

from an order denying an untimely PCRA petition). Therefore, we affirm the

order denying Appellant’s sixth PCRA petition.

Order affirmed.

Judge Strassburger did not participate in the consideration or decision

of this case.

3 Appellant purported to raise additional exceptions to the PCRA time-bar in his first and second issues on appeal. These claims involved the testimony of Mr. Boatright, a trial witness, and allegations of prosecutorial misconduct. Appellant’s Brief at 7, 10. However, Appellant unsuccessfully raised these issues in his April 9, 2015 PCRA petition. Fifth PCRA Petition, 4/9/15, at ¶¶ 16- 29; PCRA Court Order, 11/18/16; Johnson, 16 EDA 2017 (unpublished memorandum at *2). We conclude that these allegations do not satisfy the newly discovered facts exception under 42 Pa.C.S. § 9545(b)(1)(ii), as these claims were long-known to Appellant such that they were raised in a prior PCRA petition. Additionally, these claims do not constitute after-discovered evidence pursuant to 42 Pa.C.S. § 9543(a)(2)(vi); rather, they were previously litigated, and they cannot constitute grounds for PCRA relief. See 42 Pa.C.S. § 9543(a)(3) (prohibiting PCRA relief for claims that were previously litigated).

-7- J-S50029-20

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/22/21

-8-