Com. v. Johnson, M.

J-S07022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MAXAMILLIAN EMANUEL JOHNSON,
Appellant No. 1250 MDA 2014
Appeal from the PCRA Order of June 24, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003170-2008
BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 27, 2015
Appellant, Maxamillian Emanuel Johnson, appeals from the order
entered on June 24, 2014, dismissing his first petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On November 9, 2009, Appellant entered a negotiated guilty plea to
robbery, criminal conspiracy, and theft by unlawful taking.1 That same day,
the trial court sentenced Appellant to serve a term of eight to 20 years in
prison and to serve a concurrent term of 20 years of probation. The
underlying facts are as follows:
[In the early morning hours of March 3, 2008, Appellant]
and two co-conspirators rushed into a living room with
firearms in hand; the three men began to kick and punch
the victim[,] causing him to fall to the floor. During the
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), and 3921(a), respectively.
J-S07022-15
attack[,] the three males removed the victim’s wallet, car
keys, and other personal effects from his pockets. [The]
three [men then fled] the scene in the victim’s vehicle.
During the subsequent investigation it was discovered that a
man by the alias [of “Black”] was a potential suspect in the
case. [N.T. PCRA Hearing I, 9/25/12, at 28]. “Black” [was
later] identified as Davis R. Smith[,] Jr. . . .
[Mr. Smith] was picked up by [the] Lancaster [City] Police
in Philadelphia . . . and brought back [to Lancaster] for
questioning. [N.T. PCRA Hearing, II, 9/19/13, at 8].
During questioning[,] Mr. Smith gave a statement both
confessing to his role in the robbery, and implicating
[Appellant] as one of his co-conspirators. [N.T. PCRA
Hearing I, 9/25/12, at 26-28].
Relying on [Mr.] Smith’s statement, [Lancaster City Bureau
of Police] detectives arranged a photo line-up[, which
included Appellant’s] photo, for the victim’s evaluation.
[Id. at 27]. Prior to the night of the robbery, the victim had
never seen[] nor spoken with [Appellant]. Despite this, the
victim was able to [positively] identify [Appellant] as one of
the men involved in the robbery. [Id.] . . . [The victim
also positively identified Appellant at Appellant’s preliminary
hearing. Id.]
During the PCRA hearing[, Appellant’s] trial attorney, Barry
G. Goldman, Esq. described the victim’s identification
[testimony of Appellant during the preliminary hearing] as
“emphatic.” [As Attorney Goldman testified:]
[The victim] was very emphatic in his testimony and in
his identification of [Appellant] through the photo array.
. . . [W]hat I was trying to establish was whether there
was an independent basis to identify [Appellant] through
the course of events. And it was very clear in [the
victim’s] mind that he had such an independent basis to
identify [Appellant]. . . . [The victim] was very, very
clear in terms of location of events, the lighting of the
rooms, those kinds of things, and how he could
positively identify [Appellant].
-2-
J-S07022-15
[Id. at 32].
Based on the victim’s identification, [Appellant] was charged
[with the March 3, 2008 robbery, criminal conspiracy, and
theft by unlawful taking]. . . . [Id. at 27]. Attorney
Goldman was appointed to represent [Appellant] on [the
March 3, 2008 charges, as well as on a variety of other
charges that arose out of other events and that were listed
on separate docket numbers]. [Id. at 30]. Attorney
Goldman met with [Appellant] on multiple occasions prior to
his [November 9, 2009] plea. During those meetings[,
Attorney Goldman and Appellant] discussed the evidence
[against Appellant (including Mr. Smith’s statement to the
police, the victim’s independent identification of Appellant
as one of the robbers, and the victim’s preliminary hearing
testimony, where the victim again identified Appellant as
one of the robbers),] evaluated [Appellant’s] options[,] and
entertained potential sentencing [scenarios] based on the
charges. [Id. at 31-32 and 35-36]. . . .
On November 9, [2009, Appellant] entered [] a negotiated
[guilty plea before the trial court. During the guilty plea
colloquy, Appellant] was appraised of his rights, and the
rights he would [lose] by pleading guilty. [Further, during
the colloquy,] facts supporting the robbery charge were
placed on the record. Following a recitation of the facts[,
Appellant] was asked if those facts were indeed “what
happened here.” [Appellant] replied “Yes, sir.” . . .
[On November 9, 2009, Appellant was sentenced in
accord[ance with the negotiated plea agreement], to a
period of not less than eight nor more than [20] years [in
prison, with a concurrent term of 20 years of probation.
Appellant did not file a direct appeal from his judgment of
sentence].
[On January 28, 2011, Appellant filed a pro se PCRA
petition. Within Appellant’s PCRA petition, Appellant
averred that, on December 28, 2011, Appellant] received a
photo-copied, handwritten affidavit in the mail. The
affidavit had no return address on the envelope, but
appeared to be signed by [Appellant’s] co-conspirator, [Mr.
Smith].
-3-
J-S07022-15
In the affidavit[, Mr.] Smith claim[ed] that his prior
statement implicating [Appellant] was a lie. [Mr. Smith
claimed] that he was under the influence of drugs when the
statement was made[,] that the detectives knew of [(and
used)] a sexual relationship between [Appellant] and [Mr.]
Smith’s girlfriend as leverage against [Mr.] Smith[,] and
that [Mr.] Smith [was promised that he] would receive a
lighter sentence [if he] implicat[ed] [Appellant in the
robbery].
[Within Appellant’s PCRA petition, Appellant claimed that
Mr. Smith’s affidavit constituted after-discovered evidence,
which entitled Appellant to post-conviction collateral relief.
The PCRA court appointed counsel to represent Appellant
and counsel filed an amended PCRA petition on June 5,
2012. Within Appellant’s amended PCRA petition, Appellant
again claimed that Mr. Smith’s affidavit constituted after-
discovered evidence and that the evidence supported
Appellant’s claim that his guilty plea was “unlawfully
induced where the circumstances make it likely that the
inducement caused [Appellant] to plead guilty and
[Appellant] is innocent.” Appellant’s Amended PCRA
Petition, 6/5/12, at 2; 42 Pa.C.S.A. § 9543(a)(2)(iii).]
[On September 25, 2012 and September 19, 2013, the
PCRA court held a hearing on Appellant’s PCRA petition,
where the above-summarized evidence was introduced.
Moreover, in preparation for both days of the hearing, the
PCRA c]ourt made efforts to locate and subpoena Mr. Smith.
Despite best efforts by counsel [and the PCRA] court, Mr.
Smith could not be located. Due to his unavailability, a
photocopy of what was believed to be Mr. Smith’s affidavit
was entered into evidence pursuant to [Pennsylvania Rule of
Evidence] 804(a)(5). [N.T. PCRA Hearing, II, 9/19/13, at
5].
[Moreover, given the accusations contained in Mr. Smith’s
affidavit,] the Commonwealth called interviewing officer,
Detective [Heather] Halstead, to testify about [the police
questioning of Mr.] Smith[]. [Id. at 5-16]. During her
testimony, Detective Halstead rebutted claims that [Mr.
Smith] was under the influence [of drugs] at the time of his
statement. [Id. at 8-9]. [Indeed, as Detective Halstead
testified, Mr.] Smith had spent the previous night
-4-
J-S07022-15
incarcerated in Philadelphia, and was placed in a holding cell
for several hours before speaking with the [Lancaster City]
detectives. [Id. at 9]. [Detective Halstead testified that] at
all times during questioning[, Mr.] Smith appeared lucid and
coherent, and [that he] showed no signs of being under the
influence of narcotics. [Id.] [Detective Halstead further
testified that] she had no knowledge of any feud between
[Mr.] Smith and [Appellant] regarding [Appellant’s]
relationship with [Mr.] Smith’s girlfriend. [Id. at 15]. . . .
[Finally,] Detective Halstead [testified] that at no time
during the interrogation process was [Mr.] Smith promised
a lighter sentence for implicating [Appellant]. [Id.]
PCRA Court Opinion, 9/5/14, at 2-5 (internal footnotes omitted and some
internal capitalization omitted).
By order dated June 24, 2014, the PCRA court denied Appellant post-
conviction collateral relief. Appellant filed a timely notice of appeal and
Appellant now raises the following claim to this Court:
Whether the [PCRA c]ourt erred in denying post-conviction
relief on the basis of an unlawfully induced guilty plea,
where the primary witness against Appellant recanted his
incriminating statement after the plea?
Appellant’s Brief at 4.
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
-5-
J-S07022-15
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we
consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,
586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
-6-
J-S07022-15
In the case at bar, since Appellant did not file a direct appeal, his
judgment of sentence became final on December 10, 2009 – which was 31
days after Appellant was sentenced in open court and the time for filing a
direct appeal to this Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A.
§ 9545(b)(3). Appellant then had until December 10, 2010 to file a timely
PCRA petition. 42 Pa.C.S.A. § 9545(b). As Appellant did not file his current
petition until January 28, 2011, the current petition is manifestly untimely
and the burden thus fell upon Appellant to plead and prove that one of the
enumerated exceptions to the one-year time-bar applied to his case. See
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,
1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-
year time-bar, the PCRA demands that the petitioner properly plead all
required elements of the relied-upon exception).
Here, Appellant has attempted to invoke the “after-discovered facts”
exception to the time-bar. This statutory exception provides:
(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:
...
(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[;]
(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.
-7-
J-S07022-15
42 Pa.C.S.A. § 9545(b).
The PCRA’s after-discovered facts exception permits the filing of a
petition outside of the one-year time-bar if the petitioner pleads and proves
that 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). Our Supreme Court has explained
that the after-discovered facts exception “does not require any merits
analysis of the underlying claim. Rather, the exception merely requires that
the ‘facts’ upon which such a claim is predicated must not have been known
to appellant, nor could they have been ascertained by due diligence.”
Bennett, 930 A.2d at 1271 (internal quotations and citation omitted),
quoting Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa. 2005).
In the case at bar, Appellant averred that he received an affidavit from
Mr. Smith on December 28, 2011, in which Mr. Smith declared: that, when
he told the Lancaster police that Appellant had participated in the March 3,
2008 robbery, he was not telling the truth; that “[t]he statement [he] made
[to the police] was 100% fabricated to insure that [Detective Heather]
Halstead of the Lancaster Police Dep[artment] could get [Appellant];” that
Detective Halstead “wrote up the whole statement and told [him] to sign it
[so that he] would receive a lighter sentence;” that, when he gave the
statement to Detective Halstead, he was high on PCP; that he told Detective
Halstead that he was high on PCP at the time he made the statement, but
-8-
J-S07022-15
Detective Halstead told him not “to tell [anyone] because she would then
take back the deal;” that, at the time he made the statement to the police,
he had a personal vendetta against Appellant “because [Appellant] was
having sex with [his] girlfriend;” and, that Detective Halstead knew about
his vendetta against Appellant and “used [it] to persuade [him] to conspire
against [Appellant].” Mr. Smith’s Affidavit, dated 12/6/11, at 1. Based upon
these “after-discovered facts,” Appellant claimed that his guilty plea was
“unlawfully induced where the circumstances make it likely that the
inducement caused [Appellant] to plead guilty and [Appellant] is innocent.”
Appellant’s Amended PCRA Petition, 6/5/12, at 2; 42 Pa.C.S.A.
§ 9543(a)(2)(iii).
Setting aside the underlying merits of Appellant’s claim, Appellant has
properly invoked the “after-discovered facts” exception to the PCRA’s one-
year time-bar. This is because Appellant pleaded and proved that: 1) the
facts upon which the claim is predicated (Mr. Smith’s supposed “recantation”
of his prior statement to the police) “were unknown to the petitioner and
could not have been ascertained by the exercise of due diligence” and 2)
Appellant raised his “after-discovered facts” claim on January 28, 2011,
which was within 60 days of the date that Appellant first became aware of
the facts upon which his claim is predicated. C.f. Commonwealth v.
Davis, 86 A.3d 883, 891 (Pa. Super. 2014) (holding that the PCRA’s “after-
discovered evidence” exception is satisfied where a witness submits an
-9-
J-S07022-15
affidavit that recants earlier trial testimony); Commonwealth v. Medina,
92 A.3d 1210, 1219-1220 (Pa. Super. 2014) (en banc) (same). Thus, we
have jurisdiction to consider the merits of Appellant’s claim. However, we
agree with the PCRA court that Appellant’s underlying claim is meritless.
In the case at bar, the PCRA court held a two-day hearing on
Appellant’s claim; the first day of the hearing occurred on September 25,
2012 and the second day of the hearing occurred approximately one year
later, on September 19, 2013. As the PCRA court explained, in preparation
for the hearing, counsel and the PCRA court “made efforts to locate and
subpoena [the affiant,] Mr. Smith.” PCRA Court Opinion, 9/5/14, at 4. Yet,
“[d]espite best efforts by counsel[ and the PCRA c]ourt, Mr. Smith could not
be located” during the entire time that Appellant’s PCRA petition remained
pending. Id.Nevertheless, during the PCRA hearing, the PCRA court admitted Mr.
Smith’s affidavit as evidence. N.T. PCRA Hearing, II, 9/19/13, at 5.
Further, the PCRA court heard testimony from Appellant, Lancaster City
Detective Heather Halstead, and Appellant’s trial counsel, Barry Goldman,
Esquire. N.T. PCRA Hearing I, 9/25/12, at 3-47. After considering all of this
evidence, the PCRA court concluded: 1) that Mr. Smith’s affidavit was not
credible; and 2) even if Mr. Smith’s affidavit were credible, Appellant’s guilty
plea was not induced by Mr. Smith’s statement to the police, as the victim
- 10 -
J-S07022-15
independently and unequivocally identified Appellant as one of the robbers.
PCRA Court Opinion, 9/5/14, at 6-7.
The record thoroughly supports the PCRA court’s factual findings and
conclusions.
Initially, the record supports the PCRA court’s conclusion that the
statements contained in Mr. Smith’s affidavit were not credible. Certainly,
during the PCRA hearing, the PCRA court heard testimony from Detective
Halstead. As was summarized above, Detective Halstead refuted almost
every single substantive allegation contained in Mr. Smith’s affidavit.
Specifically, Detective Halstead testified: that Appellant was not (and could
not have been) under the influence of drugs at the time of his initial
statement to the police; that Mr. Smith freely answered her questions; that
she transcribed Mr. Smith’s answers and Mr. Smith later reviewed the
statements to ensure their accuracy; that she had no knowledge that there
was any animosity between Mr. Smith and Appellant; and, that she did not
promise Mr. Smith a lighter sentence if Mr. Smith implicated Appellant in the
robbery. N.T. PCRA Hearing II, 9/19/13, at 5-15. The PCRA court credited
Detective Halstead’s testimony. PCRA Court Opinion, 9/5/14, at 6-7.
Accordingly, the PCRA court did not believe the statements contained in Mr.
Smith’s affidavit. Id.The PCRA court’s credibility determinations were within its province.
Moreover, since the PCRA court credited Detective Halstead’s testimony and
- 11 -
J-S07022-15
since the PCRA court, consequently, determined that the statements
contained in Mr. Smith’s affidavit were false, the PCRA court properly denied
Appellant post-conviction collateral relief. As a result of the PCRA court’s
credibility determinations, Appellant was unable to prove that his guilty plea
was “unlawfully induced” or that he was actually “innocent” of the crimes.
See 42 Pa.C.S.A. § 9543(a)(2)(iii).
Further, we conclude that the PCRA court was within its discretion to
deny Appellant post-conviction collateral relief, based upon the separate
ground that Appellant failed to prove that his guilty plea was “induced” by
Mr. Smith’s police statement. See PCRA Court Opinion, 9/5/14, at 6. To be
sure, the evidence demonstrates that the victim independently and
“emphatically” identified Appellant as one of the three perpetrators – and
that the victim did so both in a photographic array and during Appellant’s
preliminary hearing. See N.T. PCRA Hearing, 9/25/12, at 31-34. Since the
evidence demonstrates that Appellant’s guilty plea was based upon the
totality of the Commonwealth’s case against him – and since Appellant’s trial
attorney testified that the victim’s identification testimony was a significant
factor in Appellant’s decision to plead guilty – the PCRA court was within its
discretion, as fact-finder, to conclude that Appellant’s guilty plea was
“principal[ly]” induced by the victim’s identification of Appellant as one of
the perpetrators. PCRA Court Opinion, 9/5/14, at 6; N.T. PCRA Hearing,
- 12 -
J-S07022-15
9/25/12, at 38. Therefore, Appellant’s claim that Mr. Smith’s statement
“induced” him to plead guilty fails.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2015
- 13 -