Com. v. Johnson, W.

Opinion

J-S36018-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : WILLIE JOHNSON, : : Appellant : No. 3047 EDA 2018

Appeal from the PCRA Order Entered October 3, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1003092-2000

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

JUDGMENT ORDER BY KING, J.: FILED DECEMBER 7, 2021

Appellant, Willie Johnson, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. We affirm.

In 2001, a jury convicted Appellant of two counts of first-degree murder,

two counts of robbery, and other offenses. The court sentenced Appellant on

January 4, 2002, to life imprisonment for the murder convictions and imposed

lesser terms of imprisonment for the other offenses. This Court affirmed the

judgment of sentence on August 20, 2003, and our Supreme Court denied

allowance of appeal on March 16, 2004. See Commonwealth v. Johnson,

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* Retired Senior Judge assigned to the Superior Court. J-S36018-21

833 A.2d 1146 (Pa.Super. 2003), appeal denied, 577 Pa. 712, 847 A.2d 1280

(2004).

Appellant filed the current serial PCRA petition pro se on August 22,

2014. In it, Appellant claimed he received new evidence in the form of an

affidavit from Emerson Richburg. In the affidavit, Richburg states that he had

been previously incarcerated with two of Appellant’s co-defendants, and each

co-defendant admitted to Richburg that Appellant had nothing to do with the

murders at issue. Appellant attached the affidavit from Richburg and asserted

the “newly-discovered facts” exception to the PCRA time-bar.

The court appointed counsel, who subsequently filed an amended PCRA

petition. The court issued appropriate notice per Pa.R.Crim.P. 907 on August

30, 2018. On October 2, 2018, the court denied PCRA relief. Appellant timely

appealed on October 9, 2018. On October 11, 2018, the court ordered

Appellant to file a concise statement; Appellant complied on August 19, 2018.1

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is final “at the conclusion of

1 The delays between the filing of the notice of appeal and our disposition of this matter are attributed to the appointment of new appellate counsel and Appellant’s multiple requests for an extension of time to file a brief.

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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.” 42 Pa.C.S.A. § 9545(b)(3). The statutory

exceptions to the PCRA time-bar allow very limited circumstances to excuse

the late filing of a petition; a petitioner must also assert the exception within

the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).

Instantly, Appellant’s judgment of sentence became final in June 2004,

upon expiration of the time to file a petition for writ of certiorari in the U.S.

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13 (allowing

90 days to file petition for writ of certiorari with United States Supreme Court).

Appellant filed the current PCRA petition on August 22, 2014, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant now attempts to invoke the “newly-discovered facts”

exception to the PCRA time-bar, relying on the Richburg affidavit, which

provides alleged statements of Appellant’s co-defendants, Mr. Taylor and Mr.

Waddy. As the PCRA court notes, however, Mr. Taylor died on December 22,

2014, and Mr. Waddy died on October 14, 2011. (See PCRA Court Opinion,

filed 11/6/18, at 5). As the Richburg affidavit is based on inadmissible hearsay

which fails to satisfy any hearsay exception, his asserted PCRA time-bar

exception fails. See Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d

1263 (2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 201

(2008) (explaining claim based on inadmissible hearsay does not satisfy

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“newly-discovered facts” exception). Further, the substantive after-

discovered evidence claim would similarly fail for this reason. See

Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988) (stating

proposed after-discovered evidence must be producible and admissible).

Accordingly, we affirm the order dismissing Appellant’s current PCRA petition

as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/7/2021

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