Com. v. Johnson, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK JOELL JOHNSON :
:
Appellant : No. 696 EDA 2022
Appeal from the PCRA Order Entered March 15, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001548-1998
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 7, 2023
Malik Joell Johnson (Appellant) appeals from the order entered in the
Lehigh County Court of Common Pleas, dismissing as untimely filed his serial
petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Appellant
seeks relief from the judgment of sentence of life imprisonment, imposed on
June 30, 1999, following his jury conviction of first-degree murder.2 He insists
the PCRA court erred when it determined his petition did not qualify for either
the newly recognized constitutional right or governmental interference
exception to the PCRA timing requirements. For the reasons below, we affirm.
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. § 2502(a).
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The relevant facts underlying Appellant’s conviction were summarized
by this Court in a prior appeal:
On August 10, 1997, Ronald McPherson was shot in the face.
This terrible crime occurred directly outside of the L.A. Bar & Grill
in Allentown, Pennsylvania. [In February of 1998,] Mr. McPherson
. . . died of this gunshot wound. Appellant . . . was charged with
the murder[.] Witnesses for the Commonwealth testified that Mr.
McPherson and [A]ppellant were in a heated argument second
before shots were fired. One witness testified that he saw
[A]ppellant shoot the victim in the head. Another witness testified
that she ran into the bar after she heard the gunshots and
[A]ppellant came inside the bar directly after her. Appellant
contended throughout the trial that he never went outside of the
bar. . . .
Commonwealth v. Johnson, 1092 EDA 2003 (unpub. memo. at 1) (Pa.
Super. Dec. 29, 2003), appeal denied, 996 MAL 2004 (Pa. Mar. 1, 2005).
On May 11, 1999, a jury convicted Appellant of both first-degree murder
and third-degree murder, and the trial court subsequently imposed the
mandatory sentence of life imprisonment. Appellant filed a timely direct
appeal asserting challenges to the trial court’s refusal to strike a juror for
cause and refusal to grant a new trial based upon alleged prosecutorial
misconduct during closing arguments. See Commonwealth v. Johnson,
3594 EDA 1999 (unpub. memo. at 1-2) (Pa. Super. Feb. 28, 2001), appeal
denied, 251 MAL 2001 (Pa. Aug. 30, 2001). A panel of this Court affirmed the
judgment of sentence, and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on August 30, 2001. See id.
On May 7, 2002, Appellant filed a timely, pro se PCRA petition. Counsel
was later appointed. The PCRA court denied relief on March 6, 2003, and
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Appellant filed an appeal to this Court asserting trial counsel’s ineffectiveness
for failing to request an alibi instruction. See Johnson, 1092 EDA 2003
(unpub. memo. at 2). This Court again denied relief. See id. at 6.
Appellant then filed a second PCRA petition in July of 2004, seeking
reinstatement of his right to petition the Pennsylvania Supreme Court for
review of the denial of his first petition. See Appellant’s Motion for Post
Conviction Collateral Relief, 7/16/04, at 3. The PCRA court granted relief, and
Appellant was permitted to file a petition for allowance of appeal with the
Supreme Court nunc pro tunc. See Order, 10/4/04; Amended Order,
10/14/04. On March 1, 2005, the Pennsylvania Supreme Court denied
Appellant allocatur review. See Commonwealth v. Johnson, 996 MAL 2004
(Pa. Mar. 1, 2005).
On May 22, 2012, Appellant filed two additional pro se PCRA petitions ─
one titled as a “First Amended” petition, and the other as a “Second or
Subsequent” petition. See Appellant’s Pro Se First Amended PCRA Petition,
5/22/12; Appellant’s Second or Subsequent Pro Se PCRA Petition, 5/22/12.
Appellant asserted various claims of the ineffective assistance of trial counsel,
including purported “newly discovered evidence” that counsel withheld
information regarding the Commonwealth’s pretrial plea offer. See
Appellant’s Pro Se First Amended PCRA Petition at 4; Appellant’s Second or
Subsequent Pro Se PCRA Petition, at 6. Upon Appellant’s request, the PCRA
court appointed the Lehigh County Public Defender’s Office to represent him.
See Order, 1/15/13.
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On July 31, 2013, Carol Marciano, Esquire, Appellant’s public defender,
filed a motion to withdraw and Turner/Finley3 “no merit” letter, concluding
Appellant’s petitions were untimely filed, and he was unable to satisfy any of
the PCRA’s timeliness exceptions. See Attorney Marciano’s “No Merit” Letter
to PCRA Court, 7/31/13, at 1-3. The PCRA court conducted a hearing on the
motion to withdraw on August 20, 2013. See Commonwealth v. Johnson,
69 EDA 2014 (unpub. memo. at 2) (Pa. Super. Jun. 12, 2015). On October
8, 2013,4 the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
the petitions, and granted Attorney Marciano’s petition to withdraw. See
Order, 10/8/2013. Appellant filed a timely response, but the PCRA court
entered an order dismissing Appellant’s petitions on November 15, 2013. See
Order, 11/15/13. On appeal, this Court affirmed the order denying PCRA
relief, concluding Appellant’s failure to comply with the PCRA court’s directive
to file a Pa.R.A.P. 1925(b) statement waived all claims for review, and, in any
event, Appellant’s petitions were untimely filed and he failed to prove the
applicability of any of the timeliness exceptions. See Johnson, 69 EDA 2014
(unpub. memo. at 5-11). Although Appellant petitioned the Pennsylvania
Supreme Court for review, his appeal was administratively closed on October
21, 2015. See 403 MT 2015.
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3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4Although the order was docketed on October 3, 2013, it was not sent to
Appellant until October 8th.
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Appellant filed the present PCRA petition, pro se, on February 10, 2022.
He acknowledged the untimeliness of his petition, but argued that he was
entitled to relief based upon the Pennsylvania Supreme Court’s decision in
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). See Appellant’s
Motion for Post Conviction Collateral Relief, 2/10/22, at 9 (unpaginated).
Appellant argued that the Bradley decision recognized a new constitutional
right by permitting a petitioner to raise claims of ineffective assistance of PCRA
counsel, which “spring[ ] from the original petition[,]” for the first time on
appeal without violating the statute’s one-year time bar. Id. On February
18th, the PCRA court issued Rule 907 notice of its intent to dismiss Appellant’s
petition without first conducting an evidentiary hearing. See Order, 2/18/22.
The court concluded that Bradley did not recognize a new constitutional right;
rather the decision “merely expanded the opportunity for a PCRA petitioner to
raise claims of PCRA counsel ineffectiveness.” See id. at 1-2 n.1
(unpaginated). Before the PCRA court issued a final order denying relief,
Appellant filed a notice of appeal on March 11, 2022. Thereafter, on March
15th, the PCRA court entered an order dismissing Appellant’s petition. 5 The
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5 Despite the fact Appellant filed his notice of appeal prematurely, we may
consider it filed after the PCRA court entered its final order dismissing his
petition on March 15, 2022. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed
after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.”).
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court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.
Although Appellant did not include the requisite statement of questions
presented in his brief,6 we are able to discern the following issues for our
review. First, Appellant contends he met both the newly recognized
constitutional right and governmental interference exceptions to the PCRA
timing requirements. See Appellant’s Brief at 4-5, 8-10. Next, he argues he
is entitled to PCRA relief as a result of prosecutorial misconduct ─ namely, the
Commonwealth failed to disclose to Appellant that it had a “plea deal in place”
with the sole eyewitness to the shooting. See id. at 23. He also asserts both
trial and prior PCRA counsel’s ineffectiveness for failing to investigate the
purported plea deal. See id. at 28-30.
Our review of an order denying PCRA relief is well-established. “[W]e
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277, 1283–
84 (Pa. 2016) (citation and quotation marks omitted). Here, the PCRA court
determined Appellant’s serial petition was untimely filed, and Appellant failed
to prove the applicability of any of the time for filing exceptions. See Order,
2/18/22, at 1-2 n.1 (unpaginated). We agree.
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6We note that Pa.R.A.P. 2116(a), which requires an appellate include in their
brief “a statement of questions involved[,] is to be considered in the highest
degree mandatory,” as it is intended to frame the issues on appeal. See
Commonwealth v. Maris, 629 A.2d 1014, 1016 (Pa. Super. 1993) (citation
& quotation marks omitted).
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The statutory requirement that a PCRA petition must be filed within one
year of the date the judgment of sentence becomes final is a “jurisdictional
deadline” and a PCRA court may not ignore the untimeliness of a petition to
address the merits of the issues raised therein. Commonwealth v.
Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (citation omitted). See
also 42 Pa.C.S. § 9545(b)(1).
Here, Appellant's judgment of sentence was final on November 28,
2001, 90 days after the Pennsylvania Supreme Court denied his petition for
allocatur review from his direct appeal, and the time for filing a writ
of certiorari with the United States Supreme Court expired. See U.S. Sup. Ct.
R. 13. Therefore, he had until November 28, 2002, to file a timely PCRA
petition, which he did on May 7, 2002. However, the present petition ─
Appellant’s fourth ─ was filed on February 10, 2022, almost 20 years later,
and is, therefore, facially untimely.
Nevertheless, Section 9545(b)(1) provides three exceptions to the time
for filing requirement:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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
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(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)(i)-(iii). Any petition invoking one of the timeliness
exceptions must “be filed within one year of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to
allege and prove that one of the timeliness exceptions
applies.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)
(emphasis added).
Appellant invokes both the newly recognized constitutional right and
after discovered facts exceptions to the PCRA timing requirements. First, he
insists that the Bradley decision “recognized a new constitutional right that
now permits [him] to allege that his PCRA counsel was ineffective” pursuant
to Subsection 9545(b)(1)(iii). Appellant’s Brief at 4-5. Second, he maintains
the Commonwealth’s Brady violation constitutes governmental interference
with the presentation of his claim under Subsection 9545(b)(1)(i). See id. at
8. We conclude, however, that neither of these time for filing exceptions are
applicable under the facts presented herein.
In Bradley, the Pennsylvania Supreme Court permitted review to
“consider whether the current process for the enforcement of the right to
effective counsel in a first PCRA proceeding is adequate, and if not, whether
another process is appropriate.” Bradley, 261 A.3d at 386. At that time, a
petitioner was required to raise claims of PCRA counsel’s ineffectiveness in a
response to the PCRA court’s Pa.R.Crim.P. 907 notice of intent to dismiss the
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petition. See id. The failure to do so would result in waiver of the claims.
Id.
Recognizing the impracticability of that procedure, the Bradley Court
held “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.” Bradley,
261 A.3d at 401 (footnote omitted). However, the Court further opined:
[W]e deem the consideration on collateral appeal of claims of
PCRA counsel ineffectiveness to spring from the original petition
itself, and that doing so does not amount to impermissibly
allowing a “second or subsequent” serial petition ─ the concern of
our Court in [Commonwealth v.] Lawson[, 549 A.2d 107 (Pa.
1988)] and the General Assembly in its 1988 amendments to the
PCRA. Lawson, 549 A.2d at 108; 42 Pa.C.S. § 9545(b)(1).
Accordingly, we reject the notion that considering ineffectiveness
claims on collateral appeal constitutes a prohibited serial petition,
violating the PCRA’s one-year time bar.18
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18 We decline to adopt the approach . . . that would deem a
petitioner’s “discovery” of initial PCRA counsel’s ineffective
assistance to constitute a “new fact” that was unknown to
petitioner, allowing such petitioner to overcome, in a successive
petition, the PCRA’s time bar provision under the “new fact”
exception. See 42 Pa.C.S. § 9545(b)(1)(ii). We have repeatedly
rejected such an understanding of the “new fact” exception to the
PCRA’s one-year time bar.
Id. at 404 & n.18. See also id. at 406 (Dougherty, J., Concurring)
(“Importantly, our decision today does not create an exception to the
PCRA’s jurisdictional time-bar, such that a petitioner represented by the
same counsel in the PCRA court and on PCRA appeal could file an untimely
successive PCRA petition challenging initial PCRA counsel’s ineffectiveness
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because it was his first opportunity to do so[.]”) (quotation marks omitted &
emphasis added).
Although the Court did not specifically address the timeliness exception
upon which Appellant relies, it is clear Bradley did not recognize a new
constitutional right. Rather, the Bradley Court grounded its decision in the
fact that a PCRA petitioner “has a rule-based right to the appointment of
counsel for a first PCRA petition[,]” and, “[p]ursuant to our procedural rule,
. . . he is also entitled to the effective assistance of counsel.” Bradley, 261
A.3d at 391 (emphasis added). As our Court has concluded in several
unpublished decisions, Bradley did not recognize a new constitutional right
permitting petitioners to file subsequent PCRA petitions in order to challenge
prior PCRA counsel’s ineffective assistance.7 See Commonwealth v. Dixon,
1145 EDA 2022 (unpub. memo. at 6) (Pa. Super. Dec. 28, 2022) (concluding
“Bradley does not trigger the [newly recognized constitutional right]
timeliness exception [because it] is properly understood as a reassessment of
appellate procedure in cases involving claims for collateral relief[, and not] a
decision by the Pennsylvania Supreme Court which recognizes a new and
retroactive constitutional right outside the permissible filing period provided
under the PCRA.”); Commonwealth v. Parkinson, 1286 EDA 2022 (unpub.
memo. at 7-8) (Pa. Super. Oct. 6, 2022) (holding “Bradley did not create a
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7We may cite unpublished non-precedential memorandum decisions of this
Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P.
126(b)(1)-(2).
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new, non-statutory exception to the PCRA time bar”). Accordingly, Appellant’s
invocation of the newly recognized constitutional right timeliness exception
fails.
We also conclude Appellant is not entitled to relief based upon the
governmental interference exception. First, we note that Appellant did not
assert this exception in his February 10, 2022, PCRA petition. For that reason
alone, this claim is waived. See Commonwealth v. Wharton, 886 A.2d
1120, 1126 (Pa. 2005) (holding petitioner is “required to plead the
cognizability of his petition in the petition itself” and is not permitted to raise
exceptions to the timing requirements for the first time on appeal) (citations
omitted); 42 Pa.C.S. § 9545(b)(1) (petitioner asserting timeliness exception
must “allege[ ]” and “prove[ ]” one of the timeliness exceptions).
Furthermore, even if Appellant had preserved this argument, we would
determine no relief is warranted. As noted supra, a petition invoking a
timeliness exception must be filed within one year of the date the claim could
have been presented. See 42 Pa.C.S. § 9545(b)(2). Appellant does not
disclose when he learned of, or obtained, the purported Brady material ─ i.e.,
the eyewitness’s “unofficial plea agreement.” See Appellant’s Brief at 12. He
does assert, however, that he requested that both counsel appointed to assist
him in litigating his 2002 and 2012 petitions include this issue, but neither did.
See id. at 12-13. Thus, it is evident Appellant knew of this potential claim
more than a year before he filed the present petition in February of 2022.
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Because we agree with the PCRA court’s determination that Appellant’s
petition was untimely filed, and he has failed to plead and prove the
applicability of any of the PCRA’s timeliness exceptions, we affirm the order
dismissing his serial petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2023
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