Com. v. Johnson, C.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2023
• Docket: 870 EDA 2022
• Status: Unpublished

Opinion

J-S04042-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CALVIN B. JOHNSON : : Appellant : No. 870 EDA 2022

Appeal from the PCRA Order Entered March 14, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1021331-1984

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 22, 2023

Calvin B. Johnson (Johnson) appeals pro se from an order entered by

the Court of Common Pleas of Philadelphia County (PCRA court) dismissing as

untimely his fourth post-conviction petition.1 In 1985, Johnson was found

guilty of murder and sentenced to a prison term of life. Over 30 years later,

in 2016, Johnson claimed for the first time that prosecutors had suppressed

exculpatory evidence and that a witness had come forward with new testimony

which supports Johnson’s theory of self-defense. Because the PCRA court did

not err in finding the petition to be untimely, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1All of Johnson’s claims fall under the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (PCRA). J-S04042-23

I.

It is undisputed that in 1984, Johnson shot and killed the victim, Gerald

Goode. At Johnson’s murder trial, eyewitnesses Jack Johnson and Henry Snell

testified that they had been with Goode and several other men, including

Jonathan Singleton, just before the shooting. The two eyewitnesses testified

that Johnson and an accomplice, Kevin Clark, had lain in wait for Goode on

the night of the incident. As Goode approached them, Clark blinded him with

a flashlight and Johnson opened fire. Both eyewitnesses testified that Goode

was unarmed when Johnson shot him.

Johnson admitted to the shooting but claimed that he had acted in self-

defense. He testified that he and Clark had been patrolling the area in their

capacity as members of a neighborhood watch. They attempted to apprehend

Goode for a robbery and attempted rape of Johnson’s sister. Although

Johnson and Clark both testified that Goode had been armed and had

attempted to draw a gun, no weapon was recovered from Goode’s person after

he was shot, and no other witnesses corroborated the claim that Goode

possessed a weapon during the fatal encounter.

On September 10, 1985, Johnson was convicted of first-degree murder

and sentenced to a term of life. The judgment of sentence was affirmed on

direct appeal. See Commonwealth v. Johnson, 531 A.2d 32 (Pa. Super.

June 15, 1987) (unpublished memorandum); Commonwealth v. Johnson,

538 A.2d 875 (Pa. January 28, 1988) (denying allocatur). Three subsequent

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PCRA petitions were denied and the corresponding orders were all affirmed.

See Commonwealth v. Johnson, 735 A.2d 1268 (Pa. 1988) (denying

allocatur after denial of first PCRA petition upheld); Commonwealth v.

Johnson, 817 A.2d 1179 (Pa. Super. December 19, 2002) (affirming

dismissal of second PCRA petition) (unpublished memorandum); see

Commonwealth v. Johnson, 28 EDA 2015 (Pa. Super. July 22, 2015)

(affirming dismissal of third PCRA petition) (unpublished memorandum).

Johnson filed the present PCRA petition (his fourth) on March 15, 2016.

Supplemental petitions were filed on September 16, 2016, and December 4,

2018. He asserted in the petitions that prosecutors at his trial in 1985 had

withheld the fact that a key eyewitness (Snell) and the victim (Goode) had

prior criminal convictions, in violation of Brady v. Maryland, 373 U.S. 83

(1963), which requires prosecutors to furnish the defense with exculpatory

evidence. These convictions, Johnson argued, could have been used at trial

to impeach Snell’s credibility and corroborate Johnson’s claim of self-defense.

Johnson asserted that the Commonwealth’s conduct amounted to

“governmental interference” and “fraud on the court” which prevented him

from raising the claim earlier.

Further, Johnson sought to introduce newly-discovered evidence in the

form of Singleton’s affidavit. Singleton had been among the group of men

who were with Goode on the night he was shot in 1984. However, Singleton

did not complete his affidavit until July 31, 2016, at which time he averred for

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the first time that Goode was armed on the night he was shot, that Snell had

removed Goode’s weapon from the scene of the shooting, and that the

intoxication and injury of the eyewitness, Jack Johnson, would have prevented

him from observing the incident accurately. Singleton gave no explanation in

his affidavit as to why he waited 30 years to come forward.

The PCRA court entered a Rule 907 notice of its intent to summarily

dismiss Johnson’s fourth PCRA petition because it was untimely filed.2

Johnson submitted a response to the 907 notice, reiterating his earlier claims

and arguing in part that his petition should be deemed timely filed because

the delays in asserting his Brady claim resulted from the ineffectiveness of

prior counsel.

The PCRA court dismissed the fourth petition and Johnson appealed.

The PCRA court then entered a 1925(a) opinion giving its reasons why the

order of dismissal should be upheld. See PCRA Court Opinion, 1925(a)

Opinion, 7/20/2022, at 1-3.

In his brief, Johnson now raises three issues for our consideration, all of

which concern the timeliness of his petition. He argues that the

Commonwealth’s suppression of relevant criminal history satisfies the

“governmental interference” exception to the PCRA’s time-bar; that his delay

in discovering the Commonwealth’s suppression of evidence was caused by

2 See Pa.R.Crim.P. 907.

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the ineffectiveness of his prior counsel; and that the affidavit of Singleton

satisfied the “newly-discovered fact” exception to the time-bar. See

Appellant’s Brief, at 3.

II.

A.

Johnson asserts two related Brady claims regarding the

Commonwealth’s alleged withholding of Snell and Goode’s criminal histories.

Although the arguments are difficult to parse, Johnson appears to be asserting

that his Brady claims should be considered timely filed because his delay in

seeking relief resulted from the Commonwealth’s misrepresentations and his

prior counsels’ ineffectiveness.3

The PCRA’s time-bar is jurisdictional, so a court is precluded from

considering an untimely PCRA petition on the merits unless the petitioner can

plead and prove that a recognized exception applies. See Commonwealth

v. Jones, 54 A.3d 14, 16-17 (Pa. 2012). The PCRA enumerates three such

exceptions:

(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;

3 An order dismissing a PCRA petition must be affirmed if the determination of the PCRA court is supported by the evidence of record and is free of legal error. See Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005).

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(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.

42 Pa.C.S. § 9545(b)(1).

A petition invoking any of the above exceptions must be filed “within

one year of the date the claim could have been presented,” or within 60 days

if it was filed before December 2017. 42 Pa.C.S. § 9545(b)(2).4 Johnson filed

the present petition in 2016, so he had 60 days from the date his claims arose

in which to validly invoke any of the exceptions to the PCRA’s time-bar.

To establish the governmental interference exception, a petitioner must

show that: “(1) the failure to previously raise the claim was the result of

interference by government officials, and (2) the petitioner could not have

obtained the information earlier with the exercise of due diligence.”

Commonwealth v. Kennedy, 266 A.3d 1128, 1135 (Pa. Super. 2021) (citing

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

alleged violation of Brady “may fall within the governmental interference

4As of December 24, 2018, the time-period in which to file a petition invoking one of the three exceptions is extended from 60 days to one year. See 42 Pa.C.S. § 9545(b)(2); Act 2018, Oct. 24, P.L. 894, No. 146, §§ 2, effective in 60 days [Dec. 24, 2018]. This amendment applies to claims arising one year prior to the effective date of the amendment taking effect as to claims arising on or after December 24, 2017.

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exception,” but due diligence must still be shown. Abu-Jamal, 941 A.2d at

1268; see also Commonwealth v. Bennett, 930 A.2d 1264, 1271-72 (Pa.

2007) (a Brady claim may constitute a newly-discovered fact, but a PCRA

court’s jurisdiction can only be invoked where the fact could not have been

ascertained sooner by the exercise of due diligence).

Here, Johnson does not dispute that the petition is facially untimely, as

it had to be filed in 19895 and the present petition was filed in 2016. See 42

Pa.C.S. § 9545(b). He has attempted to satisfy the exceptions to the PCRA’s

time-bar by asserting that these claims were delayed by governmental

interference and his own counsel’s ineffectiveness. Our review of the record

supports the PCRA court’s conclusion that it lacked jurisdiction to consider

these claims because the exceptions do not apply.

As the PCRA court noted, Johnson has submitted “copies of what appear

to be summaries of criminal charges for [Goode and Snell].” PCRA Court

1925(a) Opinion, 7/20/2022, at 1. These criminal histories arguably conflict

with statements by prosecutors at Johnson’s trial that Goode and Snell had no

prior convictions at that point. However, Johnson did not attempt to plead

and prove in his fourth PCRA petition when he learned that the Commonwealth

made the alleged misstatements. In fact, Johnson made no effort at all to

5 A prior panel of this Court calculated that Johnson had to file his PCRA petition by March 28, 1989. See Commonwealth v. Johnson, 28 EDA 2015, at * 2 (Pa. Super. July 22, 2015) (unpublished memorandum).

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establish that he was unable to obtain the criminal histories of Goode and

Snell through the exercise of due diligence prior to 2016. Thus, the PCRA

court did not err in determining that Johnson failed to establish the

governmental interference exception to the PCRA’s jurisdictional time-bar.

See Kennedy, 266 A.3d at 1135.

Relatedly, Johnson cannot satisfy an exception to the PCRA’s time-bar

by simply framing the Brady issue as a claim of ineffective assistance of

counsel. In his petition and brief, Johnson argues that his prior counsel should

have located the criminal histories of Goode and Snell so that the evidence

could be used at trial to prove that Johnson shot Goode in self-defense.

Johnson cites our Supreme Court’s decision in Commonwealth v.

Bradley, 261 A.3d 381 (Pa. 2021), for the proposition that this ineffectiveness

claim is now timely because he asserted it “at the earliest possible point,” in

response to the PCRA court’s Rule 907 notice of intent to dismiss his fourth

PCRA petition. However, contrary to Johnson’s interpretation of the case,

Bradley is of no avail.

The Court held in Bradley that a “PCRA petitioner may, after a PCRA

court denies relief, and after obtaining new counsel or acting pro se, raise

claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even

if on appeal.” 261 A.3d at 401. The Bradley concurrence stressed that the

decision did “not create an exception to the PCRA’s jurisdictional time-bar[.]”

Id. at 406 (Dougherty, J., concurring).

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In line with that rationale, this Court has declined to extend the holding

of Bradley to cases involving untimely or serial PCRA petitions. See

Commonwealth v. Dixon, 1145 EDA 2022 (Pa. Super. December 28, 2022)

(unpublished memorandum) (holding Bradley does add to or modify the

timeliness exceptions of Section 9545(b)(1)(iii)); Commonwealth v. Mead,

646 MDA 2021 (Pa. Super. April 1, 2022) (unpublished memorandum)

(emphasizing that Bradley involved a timely first PCRA petition and did not

apply to appellant’s appeal from order denying his untimely petition); see

also Bennett, 930 A.2d at 1272 (an allegation of PCRA counsel’s

ineffectiveness cannot be invoked as a newly-discovered fact for the purposes

of satisfying an exception under 42 Pa.C.S. § 9545(b)). Thus, Johnson’s claim

is untimely and the PCRA court did not err in dismissing his Brady claims on

that ground.

B.

Johnson’s final claim is that the PCRA court erred in ruling that the

affidavit of an eyewitness (Singleton) did not satisfy the newly-discovered fact

exception to the PCRA’s time-bar.

This exception only applies where the facts upon which the claim is

predicated were not previously known to the petitioner and could not have

been ascertained through the exercise of due diligence. See 42 Pa.C.S.

§ 9545(b)(1)(ii). Our Supreme Court has explained that the exception has to

do with “newly discovered facts, not . . . a newly discovered or a newly willing

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source for previously known facts.” Commonwealth v. Johnson, 863 A.2d

423, 427 (Pa. 2004).

The due diligence component of the exception requires a petitioner to

make a “reasonable effort” to protect his interests and uncover facts that may

support a claim for collateral relief. See generally Commonwealth v.

Burton, 158 A.3d 618, 623-24 (Pa. 2017). When asserting this exception, a

petitioner “must explain why he could not have learned the new facts earlier

with the exercise of due diligence.” Commonwealth v. Sanchez, 204 A.3d

524, 526 (Pa. Super. 2019). “This rule is strictly enforced.” Commonwealth

v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).

In the present case, Johnson had sought to prove at trial that he had

shot the victim, Goode, in self-defense. Both Johnson and his accomplice

testified that Goode was armed. The affidavit produced by Singleton

corroborates Johnson’s trial testimony and also adds the new detail that,

according to Singleton, it was the eyewitness, Snell, who removed Goode’s

weapon in the aftermath of the shooting.

Johnson has nevertheless failed to establish that the newly-discovered

fact exception applies because he did not explain why Singleton’s account

could not have been uncovered earlier through the exercise of due diligence.

The trial took place in 1985 – over 30 years prior to his most recent PCRA

petition – and Singleton’s presence at the shooting has been known to Johnson

since that time.

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The affidavit submitted by Singleton sheds no light on why he waited

several decades to share what he had observed on the night Goode was killed.

Johnson has likewise given no cogent explanation as to why he could not have

contacted Singleton in the intervening decades between the shooting and the

filing of his fourth PCRA petition. Thus, the PCRA court did not err in

determining that Johnson’s claim is untimely because due diligence was not

shown. See Commonwealth v. Porter, 35 A.3d 4, 21–22 (Pa. 2012)

(finding lack of diligence where defendant failed to explain why he could not

have spoken to known witness in the decades between the trial and the

discovery of new fact).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2023

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