Com. v. Johnson, A. ( 2017 )


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  • J-S74015-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                        :
    :
    :
    ANTHONY JOHNSON                       :
    :
    Appellant           :   No. 3443 EDA 2016
    Appeal from the PCRA Order October 26, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0203601-2001
    BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
    MEMORANDUM BY BOWES, J.:                        FILED DECEMBER 29, 2017
    Anthony Johnson appeals from the October 26, 2016 order denying
    him PCRA relief. We affirm.
    On August 17, 2001, a jury convicted Appellant of rape, involuntary
    deviate sexual intercourse, robbery, aggravated assault, and aggravated
    indecent assault. The convictions were based upon the following events. On
    the evening of November 6, 2000, victim A.M. exited the trolley in
    Philadelphia after work and began walking home. Appellant approached her
    on Windsor Avenue, placed his hands over her mouth, and dragged her into
    an alley. Appellant demanded money, and became agitated when the victim
    said that she had none.
    Appellant searched a gym bag that A.M. was carrying, stole her cell
    phone, and pushed her further into the alley.    When the victim screamed,
    Appellant beat her until she was nearly unconscious.        Appellant then
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    penetrated A.M.’s vagina and anus with his penis, and inserted his penis into
    her mouth and ejaculated. After Appellant fled, the victim spat the semen
    from her mouth into a shirt from her gym bag. The victim went home, and
    her husband immediately took her to the hospital, where the shirt with the
    semen was given to police. Police were informed that A.M.’s assailant had
    taken her cell phone, and they began to monitor its use. The day after the
    crime, the phone was used twice to contact Franklin Harris, who told police
    that Appellant had called him from the phone in question.
    Harris took the police to Appellant, who insisted that he borrowed the
    cell phone from Robert Green while they were riding a trolley.          Appellant
    agreed to have blood drawn for DNA testing. Police tracked down Mr. Green
    and ascertained that he was incarcerated on the day that Appellant
    purportedly borrowed A.M.’s cell phone from Mr. Green.          Appellant’s DNA
    matched the DNA from the semen found on the victim’s shirt.
    After the jury convicted Appellant, he was sentenced on December 14,
    2001, to twenty-five to fifty years imprisonment.       Appellant’s first appeal
    was dismissed due to counsel’s failure to file a brief, but his appellate rights
    were reinstated pursuant to a timely PCRA petition.1 On August 26, 2004,
    ____________________________________________
    1
    Since this first petition resulted in reinstatement of Appellant’s right to file
    a direct appeal, it is not considered a PCRA petition. Commonwealth v.
    Turner, 
    73 A.3d 1283
    , 1286 (Pa.Super. 2013) (“when a PCRA petitioner's
    direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a
    subsequent PCRA petition will be considered a first PCRA petition for
    timeliness purposes”).
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    we   affirmed   Appellant’s   judgment      of   sentence,   Commonwealth   v.
    Johnson, 
    860 A.2d 1129
     (Pa.Super. 2004) (unpublished memorandum),
    and our Supreme Court denied allowance of appeal on March 31, 2005,
    Commonwealth v. Johnson, 
    871 A.2d 189
     (Pa. 2005). Appellant filed a
    timely pro se PCRA petition on May 2, 2005, counsel was appointed, and the
    petition was denied. Appellant did not file an appeal from the denial of his
    first request for post-conviction relief.
    Appellant filed his second PCRA petition on January 12, 2009, and that
    request for relief was dismissed as untimely filed. While no appeal was filed
    from dismissal of that petition, Appellant filed a third request for post-
    conviction relief on September 16, 2010.            Counsel was appointed and
    thereafter moved to withdraw.       Said request was granted, and relief was
    denied. Appellant filed his fourth request for PCRA relief on July 10, 2014.
    That petition was dismissed as untimely, and, on appeal, we affirmed.
    Commonwealth v. Johnson, 
    131 A.3d 81
     (Pa.Super. 2015) (unpublished
    memorandum).        Therein, we confirmed that the September 16, 2010
    petition was untimely, ruled that Appellant’s judgment of sentence became
    final for purposes of the PCRA on June 29, 2005, and noted that he until
    June 29, 2006, to file a timely petition.
    The present PCRA petition was filed on May 23, 2016, and it was
    dismissed as untimely filed. This appeal followed. Appellant presents these
    claims on appeal:
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    [1.] Did or did not, the prosecutor commit a Brady violation by
    suppressing exculpatory facts of material evidence that related
    directly to the overall credibility of his key witness, that was
    critical to a determination of petitioner[’]s guilt or innocence, a
    violation of the Brady strictures as cited by the United States
    Supreme Court in Brady v. Maryland?
    [2.] Did or did not, the prosecutor commit a Brady violation by
    suppressing exculpatory facts of material evidence that related
    directly to the overall credibility of his key witness, that was
    critical to a determination of petitioner[’]s guilt or innocence, a
    violation of the Brady strictures as cited by the United States
    Supreme Court in Brady v. Maryland?
    [3.] Was or was not, petitioner deprived of his sixth amendment
    right by trial counsel's failure to investigate and obtain forensic
    and identification test results, of material evidence that could
    have exonerated petitioner before trial, constitute defective
    representation?
    [4.] Was or was not, petitioner deprived of his sixth amendment
    right by trial counsel's failure to request forensic DNA testing of
    material evidence, that could have exonerated petitioner,
    constitute defective represe[n]tation?
    [5.] Was or was not, petitioner deprived of his sixth amendment
    right by trial counsel's failure to investigate material evidence,
    that could have exonerated petitioner, constitute defective
    representation?
    [6.] Did or did not, the PCRA court abuse it's [sic] discretion in
    dismissing petitioner[’]s May 23, 2016, pro-se, PCRA petition, as
    untimely, by failing to appoint counsel to determine whether any
    of the statutory exception to the (1) year filing period applied to
    petitioner[’]s May 23, 2016, pro-se, pursuant to Pa.R.Crim.P.
    Rule 904?
    Appellant’s brief at E-F.
    Appellant’s claims are repetitive and can be summarized as follows: 1)
    the Commonwealth committed a Brady violation when it failed to inform him
    that semen discovered in the victim’s throat was tested but the results were
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    inconclusive; 2) the Commonwealth committed a Brady violation by not
    revealing to him that blood was discovered on the same shirt that the victim
    used to collect his semen; 3) trial counsel was ineffective for permitting the
    jury to hear that semen was found in the victim’s throat when DNA testing of
    that semen was inclusive; 4) trial counsel was ineffective for failing to obtain
    DNA testing of the blood on the shirt that also contained Appellant’s semen;
    and 5) counsel should have been appointed for purposes of litigating the
    present PCRA petition in order to establish that it was timely filed.
    This Court reviews the “denial of PCRA relief to determine whether the
    findings of the PCRA court are supported by the record and free of legal
    error.” Commonwealth v. Roane, 
    142 A.3d 79
    , 86 (Pa.Super. 2016)
    (quoting Commonwealth v. Treiber, 
    121 A.3d 435
    , 444 (Pa. 2015)). It is
    now settled law that all PCRA petitions must be filed within one year of the
    date a defendant’s judgment of sentence becomes final unless an exception
    to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA
    petition is untimely, “neither this Court nor the trial court has jurisdiction
    over the petition.” Commonwealth v. Miller, 
    102 A.3d 988
    , 992 (Pa.Super.
    2014) (citation omitted); see also Commonwealth v. Spotz,               ___ A.3d
    (Pa. CAP 731 and 734 filed October 18, 2017); Commonwealth v.
    Chester, 
    895 A.2d 520
    , 522 (Pa. 2006). The PCRA’s time constraints are
    not subject to tolling or other equitable considerations. Spotz, supra.
    There are three enumerated exceptions to this one-year time
    requirement: (1) interference by government officials in the presentation of
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    the claim; (2) newly discovered facts; and (3) an after-recognized
    constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA petitioner has
    the burden of pleading and proving the existence of any exception invoked.
    Spotz, supra. Moreover, the PCRA petition must be filed within sixty days
    of when the claim first could have been presented. 42 Pa.C.S. § 9545 (b)(2)
    (“Any petition invoking an exception provided in paragraph (1) shall be filed
    within 60 days of the date the claim could have been presented.”).
    We previously observed that Appellant’s judgment of sentence became
    final for purposes of the PCRA on June 29, 2005, and that he had until June
    29, 2006, to file a timely petition. The present petition is patently untimely.
    In support of an exception, Appellant first raises the specter of violations of
    Brady v. Maryland, 
    373 U.S. 83
     (1963), with respect to the blood found on
    the shirt and the semen from the victim’s throat that proved inclusive when
    tested.   “Under Brady, the prosecution's failure to divulge exculpatory
    evidence is a violation of a defendant's Fourteenth Amendment due process
    rights. To establish a     Brady violation, a defendant is required to
    demonstrate that exculpatory or impeaching evidence, favorable to the
    defense, was suppressed by the prosecution, to the prejudice of the
    defendant.” Commonwealth v. Cam Ly, 
    980 A.2d 61
    , 75 (Pa. 2009)
    (citation omitted).
    Our Supreme Court has articulated: “Although a Brady violation may
    fall within the governmental interference exception [to the one-year time
    bar], the petitioner must plead and prove the failure to previously raise the
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    claim was the result of interference by government officials, and the
    information could not have been obtained earlier with the exercise of due
    diligence.” Commonwealth v. Abu-Jamal, 
    941 A.2d 1263
    , 1268 (Pa.
    2008). Due diligence “demands that the petitioner take reasonable steps to
    protect his own interests.” Commonwealth v. Brown, 
    111 A.3d 171
    , 176
    (Pa.Super. 2015).    Accordingly, the PCRA petitioner must explain why he
    could not have learned of the existence of information in question earlier by
    simple investigation. 
    Id.
    In support of his purported Brady violations, Appellant presents
    police laboratory reports dated November 13, 2000, and March 21, 2001,
    and two property receipts from November 6, 2000.          Appellant’s brief at
    Exhibits 1-4.   Appellant makes no attempt to establish why he could not
    have uncovered these documents much earlier, and he did not plead
    sufficient facts to establish that he could not have learned about the
    supposedly exculpatory evidence years ago through simple investigation.
    Hence, the PCRA court did not abuse its discretion in concluding that
    Appellant did not exercise due diligence and could not invoke a Brady
    violation by means of the governmental interference exception.
    Appellant also levels three allegations of ineffective assistance of
    counsel in his statement of questions involved in this appeal.      “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).         Wharton is merely a more
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    recent iteration of this well-ensconced principle. Commonwealth v. Abu–
    Jamal, 
    833 A.2d 719
     (Pa. 2003). Commonwealth v. Gamboa–Taylor,
    
    753 A.2d 780
     (Pa. 2000); Commonwealth v. Bronshtein, 
    752 A.2d 868
    (Pa.   2000);     Commonwealth         v.    Lark,     
    746 A.2d 585
        (Pa.   2000);
    Commonwealth v. Pollard, 
    911 A.2d 1005
     (Pa.Super. 2006). Accordingly,
    Appellant’s third, fourth, and fifth claims do not satisfy an exception to the
    one-year time bar.
    Finally,   Appellant   argues    that      he   should   have      received   the
    appointment of counsel for purposes of establishing that an exception
    applied herein. Pa.R.Crim.P. 904 provides for the automatic appointment of
    counsel for purposes of a first PCRA petition. Pa.R.Crim.P. 904(C) (“when an
    unrepresented defendant satisfies the judge that the defendant is unable to
    afford or otherwise procure counsel, the judge shall appoint counsel to
    represent the defendant on the defendant's first petition for post-conviction
    collateral relief.”). However, when a second or subsequent PCRA petition is
    filed, an indigent defendant is entitled to appointed counsel only if “an
    evidentiary hearing is required as provided in Rule 908[.]” Pa.R.Crim.P.
    904(D). A hearing is required if the petition “raises material issues of fact.”
    Pa.R.Crim.P. 908(2).
    In the present case, there is no issue of material fact that Appellant
    did not meet an exception to the one-year time bar. He failed to exercise
    due diligence in ascertaining that there was blood on the shirt where his
    semen was found and in discovering that the testing on the semen found in
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    the victim’s throat was inconclusive.    Additionally, claims of ineffective
    assistance of counsel do not meet any of the exceptions. Hence, there is no
    issue of fact that this PCRA petition was untimely. The PCRA court therefore
    did not have to appoint counsel.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/29/2017
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