Com. v. Johnson, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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