Com. v. Johnson, E.

• Court: Superior Court of Pennsylvania
• Decided: April 26, 2023
• Docket: 574 EDA 2022
• Status: Unpublished

Opinion

J-S33038-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ELWOOD JOHNSON : : Appellant : No. 574 EDA 2022

Appeal from the PCRA Order Entered February 1, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0009065-2006

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED APRIL 26, 2023

Elwood Johnson (“Johnson”) appeals pro se from the denial of his

petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.

In September 2006, police began investigating Johnson's involvement

in a drug trafficking organization (“the organization”). A confidential

informant (“CI”) told the authorities Johnson possessed and sold cocaine. The

CI conducted three controlled purchases of narcotics from Johnson; during

each, Johnson drove the same black Honda. Through surveillance, the police

confirmed Johnson would often drive that car to his mother's house at 1317

Locust Street in Norristown. In October 2006, a second CI told police that

Johnson stored illegal drugs at his mother’s home. See Commonwealth v.

Johnson, 11 A.3d 1014 (Pa. Super. 2010) (unpublished memorandum at *1).

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1 See 42 Pa.C.S.A. §§ 9541-9546. J-S33038-22

Police obtained court orders to intercept the telephone conversations of

several members of the organization, including Johnson. The intercepted

conversations revealed Johnson had purchased cocaine from the leader of the

organization in October 2006. Conversations between Johnson and that man

confirmed Johnson sold the cocaine he bought and planned to buy more. Later

that month, police officers executed a search warrant for Johnson’s mother’s

home and recovered nearly 250 grams of cocaine. They also arrested the

leader of the organization and another member, who both agreed to testify

against Johnson at trial. See id.

The Commonwealth filed a criminal complaint against Johnson in

October 2006 (“the October complaint”), then withdrew it and filed a

complaint that included additional charges in November 2006 (“the November

complaint”). At a preliminary arraignment later that month, the court advised

Johnson of the additional charges. See id. at *5.

In December 2007, Johnson filed a pre-trial motion to suppress the

evidence obtained during the search of his mother’s home, asserting the

absence of probable cause to support the issuance of the search warrant.

Johnson further argued the warrant contained material misrepresentations

and omitted material information. In September 2008, the court denied

Johnson’s suppression motion. See id. at *1; Commonwealth v. Johnson,

108 A.3d 120 (Pa. Super. 2014) (unpublished memorandum at *8).

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The jury convicted Johnson of possessing a controlled substance with

intent to deliver, violation of the corrupt organizations act, and related

offenses. The court sentenced Johnson to an aggregate term of sixteen and

one-half to thirty-three years of imprisonment. This Court affirmed Johnson’s

judgment of sentence on direct appeal. See Johnson, 11 A.3d 1014. Our

Supreme Court denied allowance of appeal on March 9, 2011. See

Commonwealth v. Johnson, 20 A.3d 485 (Pa. 2011).

Johnson filed a series of unsuccessful PCRA petitions. Relevant to this

appeal, his first PCRA petition alleged trial counsel’s ineffectiveness for failing

to challenge alleged material misrepresentations in, and omissions from, the

search warrant and affidavit of probable cause, see PCRA Court Opinion,

5/2/22, at 2 n.4; his fourth PCRA petition asserted that the October 2006

complaint, which he allegedly first received in 2012, did not include all of the

charges against him, the October 2006 complaint constituted Brady2 material,

and his delayed discovery of the October 2006 complaint satisfied the

government interference and newly-discovered facts exceptions to the

jurisdictional time bar, see Johnson, 108 A.3d 120 (Pa. Super. 2014)

(unpublished memorandum at *4-5);3 and his eighth PCRA petition alleged

2See Brady v. Maryland, 373 U.S. 83 (1963) (addressing the prosecution’s obligation to provide a defendant with exculpatory information).

3In affirming the dismissal of Johnson’s petition on timeliness grounds, this Court specifically noted that Johnson had been informed of the charges in the (Footnote Continued Next Page)

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that the case file did not contain an arrest warrant and he only obtained a

copy of that warrant when his family requested it. See Commonwealth v.

Johnson, 224 A.3d 788 (Pa. Super. 2019) (unpublished memorandum at *8-

9).

In August 2021, Johnson filed the instant pro se PCRA petition, in which

he asserted that he established the government inference and newly-

discovered facts exceptions to the time-bar, see 42 Pa.C.S.A. § 9545(b)(1)(i)-

(ii), based on his recent discovery that the arrest warrant had been absent

from his case file for eight years, and of new facts contained in the October

2006 complaint and probable cause affidavit. See Petition for Post Collateral

Relief, 8/4/21, at 2-7. Johnson also alleged that the Commonwealth violated

Brady by failing to disclose the October 2006 complaint and probable cause

affidavit. See id.

Private counsel entered his appearance. The PCRA court issued a notice

of intent to dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907,

noting that in Johnson’s eighth PCRA petition he had alleged unawareness of

the arrest warrant until 2018, and that this Court had affirmed the denial of

that petition as untimely filed. See Notice of Intent to Dismiss, 11/5/21, at

October 2006 complaint at his November 2006 preliminary hearing and informed of the charges in the November complaint at his preliminary arraignment later in November 2006. See Johnson, 108 A.3d 120 (unpublished memorandum at *6-8). This Court also noted that at a 2008 suppression hearing, the trial court addressed the existence of probable cause for the search warrant. See id. at *6.

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2, citing Commonwealth v. Johnson, 224 A.3d 788 (Pa. Super. 2019)

(unpublished memorandum at *4) (rejecting Johnson’s claim that he was

unaware that there was no arrest warrant in this case). Johnson filed a pro

se response. Private counsel filed a motion to withdraw as counsel. The PCRA

court dismissed Johnson’s petition. Johnson filed a timely notice of appeal.

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

Johnson presents the following issues for appellate review:

[1.] Whether the [PCRA] court abused its discretion when declaring [Johnson’s] PCRA petition time-barred, when [Johnson] filed within the one year mandate of § 9545(b)(2), after discovering newly-discovered facts and go[v]ernmental interference . . . ?

[2.] Whether the [PCRA] court abused its discretion by not giv[ing] [Johnson’s] Brady claim a proper Brady analysis when [Johnson] has satisfied all three . . . prong[s] of Brady and the claim was supported by the record?

[3.] Whether PCRA counsel was ineffective for not filing an amended PCRA petition and/or not investigating [Johnson’s] claims?

Johnson’s Brief at 3.

Johnson’s first issue implicates the timeliness of a PCRA petition. Our

standard of review of the dismissal of a PCRA petition is limited to ascertaining

whether the evidence supports the determination of the PCRA court and

whether the ruling is free of legal error. See Commonwealth v. Andrews,

158 A.3d 1260, 1263 (Pa. Super. 2017). The appellant bears the burden to

demonstrate that the PCRA court erred and his claim merits relief. See

Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa. Super. 2019).

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All PCRA petitions, including second or subsequent petitions, must be

filed within one year of the date that the underlying judgment of sentence

becomes final. See 42 Pa.C.S.A. §9545(b)(1). A judgment becomes final “at

the conclusion of direct review . . . or at the expiration of time for seeking the

review.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. See Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Johnson concedes the untimeliness of the instant PCRA petition filed in

August 2021 because he did not file it within one year of his convictions

becoming final on June 9, 2011.4 In his first issue, he asserts that he

established the government interference and newly-discovered facts

exceptions to the PCRA’s timeliness requirements. See Johnson’s Brief at 8;

see also PCRA Petition, 8/4/21, at 2-3.

Pennsylvania courts may consider an untimely PCRA petition if the

petitioner can plead and prove one of three exceptions set forth in section

9545(b)(1)(i)-(iii). See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.

Super. 2013) (providing that a PCRA court must dismiss an untimely petition

4By rule, Johnson had ninety days after March 9, 2011 to petition for writ of certiorari. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Bankhead, 217 A.3d 1245, 1247 (Pa. Super. 2019); U.S. Sup. Ct. R. 13.1. Because he did not do so, his judgment of sentence became final on June 9, 2011. Accordingly, Johnson had until June 9, 2012 to file a timely PCRA petition.

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if no exception is pleaded and proven). The government interference

exception permits adjudication of the substance of an otherwise untimely

PCRA petition if the petitioner pleads and proves that “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[.]” 42

Pa.C.S.A. § 9545(b)(1)(i). The newly-discovered facts exception applies if

“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[.]” 42

Pa.C.S.A. § 9545(b)(1)(ii). A petitioner invoking one of these exceptions must

file a petition “within one year of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

Johnson asserts that he established the time-bar exceptions because he

only learned about the suppressed October 2006 complaint and arrest warrant

in June 2021.

The PCRA court rejected Johnson’s asserted exceptions related to the

October 2006 complaint and the arrest warrant. It specifically noted that from

Johnson’s arrest until he filed the serial PCRA petition at issue, he has

repeatedly raised issues of alleged inadequacies and omissions regarding the

October 2006 complaint, the affidavit of probable cause, the arrest warrant,

and the bills of information. See PCRA Court Opinion, 5/2/22, at 2. The

PCRA court also repeated this Court’s assertions that it “beggars belief” that

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Johnson could have been unaware of the arrest warrant for more than one

decade. See id. at 3, citing Johnson, 224 A.3d 788 (unpublished

memorandum at *4).

The record supports the PCRA court’s factual findings and legal

conclusions. Johnson raised a claim concerning the October 2006 complaint

in his fourth and eighth PCRA petitions. Thus, Johnson did not show that he

recently discovered the October 2006 complaint. See Johnson, 108 A.3d

120 (unpublished opinion at *4-5). Similarly, Johnson cannot show

concealment of the arrest warrant where he asserted a similar claim in his

eighth PCRA petition. See Johnson, 224 A.3d 788 (unpublished opinion at

*4). No time-bar exception therefore applies.

Johnson’s second issue asserts that the PCRA court abused its discretion

by declining to review his Brady claim. A Brady violation requires proof of

three elements, i.e., that: (1) the evidence withheld must be favorable to the

accused either because it is exculpatory or because it is impeaching; (2) the

state suppressed the evidence willfully or inadvertently; and (3) prejudice

ensued. See Commonwealth v. Natividad, 200 A.3d 11, 26 (Pa. 2019). A

defendant bears the burden to prove that the Commonwealth withheld or

suppressed evidence. See Commonwealth v. Ly, 980 A.2d 61, 75 (Pa.

2009).

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Johnson asserts that his claim satisfies the exception and entitles him

to de novo review of his legal claim that the Commonwealth violated Brady

by withholding the October 2006 complaint and arrest warrant.

The PCRA court stated that Johnson’s Brady claim is premised on the

withholding of documents from him that counsel in fact knew of and that

Johnson has repeatedly cited during the course of PCRA proceedings, that

Johnson’s assertion that he had just been made aware of these documents

was not credible, and therefore the Brady claim merited no further analysis.

See PCRA Court Opinion, 5/2/22, at 3-4.

Evidence of record and Johnson’s own pleadings establish that Johnson

had the documents he claims were withheld from him for an extensive period

of time. Because Johnson’s Brady claim does not establish a valid time-bar

exception, the PCRA court did not abuse its discretion by declining to analyze

it further.

Johnson’s final issue is a claim of PCRA counsel’s ineffectiveness for not

filing an amended PCRA petition, especially given the strength of his Brady

claim. He claims that counsel had no reasonable basis for not doing so and

that his failure to do so conveyed to the PCRA court that Johnson’s claims

lacked merit.

The PCRA court found that Johnson’s underlying Brady claim had no

merit and that Johnson suffered no prejudice from counsel’s alleged failure to

provide effective representation. See PCRA Court Opinion, 5/2/22, at 5.

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We affirm the PCRA court’s decision, although we do so on different

grounds. See Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa.

Super. 2022) (recognizing that an appellate court may affirm a lower court’s

decision on any ground without regard to that the lower court relied upon).

Ineffectiveness of PCRA counsel does not establish a time-bar exception where

it does not wholly deprive a defendant of collateral review. See

Commonwealth v. Stahl, --- A.3d ---, ---, 2023 WL 1793571 at *2 (Pa.

Super. 2023). Additionally, the Supreme Court’s decision in Commonwealth

v. Bradley, 261 A.3d 381 (Pa. 2021), permitting a PCRA defendant to assert

a claim of PCRA counsel’s ineffectiveness for the first time on appeal, does not

establish a time-bar exception that would allow review of a claim of

ineffectiveness of serial PCRA counsel. See generally Stahl, 2023 WL

1793571 at *4 (rejecting the assertion that initial PCRA counsel’s

ineffectiveness can establish the “new fact” exception to the time-bar).5

Accordingly, Johnson fails to establish our jurisdiction to review his

ineffectiveness claim.

Order affirmed.

5 Even if reviewable, the ineffectiveness claim would fail because counsel cannot be ineffective for failing to raise a meritless claim, and Johnson has failed to establish any basis for a time-bar exception. See Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/26/2023

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