Com. v. Johnson, R.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RONALD JOHNSON, : No. 437 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered January 18, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0523271-1980
BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: September 17, 2020
Ronald Johnson appeals from the January 18, 2019 order entered by
the Court of Common Pleas of Philadelphia County dismissing appellant’s
second petition for relief pursuant to the Post Conviction Relief Act (“PCRA”)1
without a hearing. After careful review, we affirm.
A previous panel of this court set forth the following factual history:
On July 12, 1979, shortly after midnight, Gloria Oree,
a man known only as Jibreel, Donald Colefield and
Bruce Porter were in the basement of Loretta Turner's
home at 1232 West College Avenue in Philadelphia.
Ms. Turner's eight-year-old daughter, [K.], was
sleeping on the second floor.
Immediately after Jibreel left to purchase cigarettes,
appellant, Galin Tate, Anthony Murray and a fourth
man knocked on the front door. Porter opened the
door, and the men abruptly entered with Tate wielding
1 42 Pa.C.S.A. §§ 9541-9546.
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a single-barrel shotgun and Murray brandishing a
double-barrel shotgun. Appellant and the fourth man
were unarmed at that moment.
Colefield walked to the first floor upon hearing the
intruders. As he arrived, Colefield was ordered by
Murray to face the wall and submit to a search.
Murray and appellant searched Colefield for valuables
while Porter argued with Tate. Shortly thereafter,
Murray searched the second floor while appellant and
Tate detained Colefield and Porter.
When Murray returned to the first floor, having
uncovered nothing of value, Tate inquired of Colefield
where the amphetamine and money were kept.
Realizing that Ms. Oree possessed cash, Colefield
directed them to the basement. Murray retrieved
$200.00 in cash from a table without knowing that
Oree was hiding behind the furnace.
As Murray emerged from the basement, he continued
out the front door with appellant and the fourth man.
Tate remained behind to caution Porter not to obstruct
their future visits. Porter reluctantly pledged his
cooperation, making it apparent that he had no choice
while Tate was armed with a deadly weapon. Tate
departed. Apparently piqued by Porter's earlier
resistance, Tate returned within 8 seconds and fired
the single-barrel shotgun into Porter's midriff. Porter
died shortly thereafter.
Commonwealth v. Johnson, 485 A.2d 397, 400-401 (Pa.Super. 1984)
(footnote omitted).
On November 2, 1980, a jury found [appellant] guilty
of second degree murder, robbery and conspiracy.
[Appellant] was sentenced to life in prison without the
possibility of parole. [Appellant] appealed; the
Superior Court affirmed his sentence on October 26,
1984. [See id.] The Pennsylvania Supreme Court
denied allocatur on October 6, 1985. [Appellant]
filed his first PCRA petition on May 14, 1993, which
was dismissed on January 31, 1997. The Superior
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Court affirmed this dismissal on March 25, 1998.
[Commonwealth v. Johnson, 715 A.2d 503
(Pa.Super. 1998) (unpublished memorandum).] On
August 5, 1998, the Pennsylvania Supreme Court
once again denied allocatur. [Commonwealth v.
Johnson, 727 A.2d 128 (Pa. 1998).]
On August 22, 2012, [appellant] filed a second pro se
PCRA petition, claiming relief under Miller v.
Alabama[, 567 U.S. 460 (2012)]. On October 15,
2014, [appellant] filed a pro se amended PCRA
petition, claiming newly discovered evidence.
Specifically, he claimed that his sister Sharon Moore
and his uncle John Leslie were at a neighborhood
reunion block party and they chatted with some of
[appellant’s] old friends. These friends told them to
talk to Dwight Boseman ([a.k.a] “J.J.”) because he
allegedly had information about [appellant’s] case.
Leslie contacted Boseman, who claimed that he
remembered the crime taking place, that he happened
to be outside of the house in Freddy Tomlin’s car with
Bruce Ward, a.k.a. Bruce Earl, and Freddy when it
occurred, and that he did not see [appellant] run out
of the house with the other suspects after the
shooting. Boseman claimed that he did not go to the
police with this information because Ward spoke with
police and he assumed that Ward told the police what
he saw so that there was no need to get involved.
On December 3, 2015, [appellant’s] PCRA counsel,
Regina M. Oberholzer, Esquire filed an amended
petition, withdrawing [appellant’s] Miller claim and
reiterating [appellant’s] claim of newly discovered
evidence. She argued that [appellant’s] petition
should be considered timely due to previously
unknown facts (Boseman’s affidavit) as well as
governmental interference. With respect to
governmental interference, Ms. Oberholzer argued
that the Commonwealth had Bruce Ward on its list of
potential witnesses for the trial of one of [appellant’s]
co-conspirators but that this alleged “exculpatory”
information was never turned over to [appellant’s]
counsel. Subsequently, Todd Mosser, Esquire entered
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his appearance and adopted Ms. Olberholzer’s
amended petition.
On June 18, 2018, the Commonwealth filed a letter in
brief, arguing that [appellant’s] PCRA petition should
be dismissed as untimely without exception and that
his claims were without merit. On August 29, 2018,
Mr. Mosser filed a response in opposition to the
Commonwealth’s letter brief. On December 10, 2018,
[the PCRA court] sent [appellant] a notice of intent to
dismiss pursuant to [Pa.R.Crim.P.] 907, indicating
that his petition was untimely and without merit. On
January 18, 2019, [the PCRA court] dismissed
[appellant’s] petition. On February 8, 2019,
[appellant] filed a notice of appeal to [the] Superior
Court.
PCRA court opinion, 6/3/19 at 2-4 (extraneous capitalization omitted).
The PCRA court did not order appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Did the PCRA Court err by dismissing Appellant’s
petition without evidentiary hearing where he
adequately pled two exceptions to the PCRA’s
time-bar?
2. Did the PCRA Court err by dismissing Appellant’s
petition without evidentiary hearing where he
adequately pled a Brady[2] violation?
3. Did the PCRA Court err by dismissing Appellant’s
petition without evidentiary hearing where he
adequately pled that he is entitled to a new trial
as the result of newly discovered evidence?
2 Brady v. Maryland, 373 U.S. 83 (1963).
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Appellant’s brief at 2.
The PCRA requires that any petition for collateral relief be filed within
one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the conclusion of
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.” Commonwealth v. Callahan, 101 A.3d 118,
122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3).
Here, appellant’s judgment of sentence became final on January 4,
1986, following the conclusion of the period in which appellant could have filed
a petition for a writ of certiorari with the Supreme Court of the United States.
See U.S. Sup. Ct. R. 13. Appellant filed the instant PCRA petition on
August 22, 2012 – over 26 years after his judgment of sentence became final
and over 25 years after a PCRA petition could be considered timely. See
42 Pa.C.S.A. § 9545(b)(1). Accordingly, appellant’s petition is facially
untimely.
A petitioner may only file a PCRA petition beyond one year of the date
the judgment of sentence becomes final if:
(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
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have been ascertained by the exercise of due
diligence; or
(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.A. § 9545(b)(1)(i)-(iii).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
214, 222 ([Pa.] 1999). “[Jurisdictional time]
limitations are mandatory and interpreted literally;
thus, a court has no authority to extend filing periods
except as the statute permits.” Id. “If the petition is
determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the
petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012). In cases in which a petitioner is claiming an
exception to the PCRA time-bar, the petition must be filed within 60 days of
the date the claim could have been presented.3 42 Pa.C.S.A. § 9545(b)(2).
We begin with our well-settled standard of review for the denial of PCRA
relief.
3 We note that the General Assembly amended Section 9545(b)(2) to require
PCRA petitioners invoking an exception to the time-bar to file a petition within
one year of the date the claim could have been presented. See Act 2018,
Oct. 24, P.L. 894, No. 146, § 2, effective Dec. 24, 2018. The amendment,
however, only applied to claims arising after December 24, 2017. Accordingly,
the amendment does not apply to the instant case.
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“Our review of a PCRA court's decision is limited to
examining whether the PCRA court's findings of fact
are supported by the record, and whether its
conclusions of law are free from legal error.”
Commonwealth v. Hanible, [] 30 A.3d 426, 438
([Pa.] 2011) (citing Commonwealth v. Colavita, []
993 A.2d 874, 886 ([Pa.] 2010)). We view the
findings of the PCRA court and the evidence of record
in a light most favorable to the prevailing party. Id.
With respect to the PCRA court's decision to deny a
request for an evidentiary hearing, or to hold a limited
evidentiary hearing, such a decision is within the
discretion of the PCRA court and will not be overturned
absent an abuse of discretion. See Commonwealth
v. Reid, [] 99 A.3d 470, 485 ([Pa.] 2014). “The PCRA
court's credibility determinations, when supported by
the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA
court's legal conclusions.” Commonwealth v.
Roney, [] 79 A.3d 595, 603 ([Pa.] 2013). The denial
of an appellant's request for discovery is reviewed for
abuse of discretion. Id.
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
In the instant case, appellant avers to have met two exceptions to the
PCRA time-bar: governmental interference and newly discovered evidence.
(Appellant’s brief at 7.) In order to raise a governmental interference claim
in the context of a facially untimely PCRA, a petitioner is,
required to plead and prove that his “failure to raise
the claim [or claims] previously was the result of
interference by government officials with the
presentation of the claim [or claims] in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States . . . .”
42 Pa.C.S.[A.] § 9545(b)(1)(i) (emphasis added).
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006).
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Here, appellant contends that he discovered that Ward was identified as
a potential witness in Murray’s trial. (Appellant’s brief at 10.) Appellant
further argues that “[d]espite [] Murray and [a]ppellant being tried for the
same offense, [] Ward was not identified in [a]ppellant’s discovery or at trial
as a potential witness.” (Id.) Appellant claims that this evidence,
if true, would show that [] Ward did go to law
enforcement and provide some information regarding
the robbery and shooting, and that this information
was in the Commonwealth’s possession at the time of
[] Murray’s trial but not disclosed to [a]ppellant.
Id. at 10-11.
In its opinion, the PCRA court concluded the following:
[Appellant] provides no proof whatsoever that Ward
ever spoke to police, that he actually testified at
[Murray’s] trial, or that his recollection of the events
matched Boseman’s. The only evidence [appellant]
submits, besides Boseman’s affidavit and his own
conjecture, is the first few pages of notes of testimony
from [Murray’s] trial that lists Bruce Ward as a
possible witness. There is no evidence that Ward
actually testified, and if he did in fact testify, there is
no evidence as to what he said on the stand.
Moreover, there is no evidence that law enforcement
or the Commonwealth knew about Boseman allegedly
observing the suspects fleeing the shooting.
[Appellant] did not submit an affidavit or police
statement from Ward showing that Ward’s version of
events would corroborate Boseman’s affidavit. The
only “proof” that [appellant] has offered to show that
law enforcement even knew that Boseman existed is
his own speculation that Ward told police that
Boseman was with him in the car on the day in
question. This is insufficient to prove that the
Commonwealth knew about Boseman’s alleged
connection to the case and intentionally withheld
potentially exculpatory evidence from [appellant].
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PCRA court opinion, 6/3/19 at 7.
Based on our review of the record, we find that the PCRA court did not
abuse its discretion when it denied appellant’s request for an evidentiary
hearing. We further find that the PCRA court’s legal conclusion that appellant
failed to meet his burden in establishing a claim of government interference
is free of legal error. Accordingly, appellant’s government interference issue
is without merit.
We next turn to appellant’s newly discovered evidence claim. Here,
appellant contends that he was unaware that Boseman, Ward, or Tomlin were
outside the residence at the time of the shooting and that appellant could not
have “ascertained the proffered information earlier by exercise of diligence,
as he did not know of the existence of these witnesses.” (Appellant’s brief
at 12.)
The [newly discovered evidence] exception [to the
PCRA time bar] set forth at § 9545(b)(1)(ii) has two
components, which must be alleged and proven as an
initial jurisdictional threshold. Commonwealth v.
Brown, 111 A.3d 171, 176 (Pa.Super. 2015).
Namely, the petitioner must establish that: (1) the
facts upon which the claim was predicated were
unknown; and (2) they could not have been
ascertained by the exercise of due diligence . See
Commonwealth v. Bennett, [] 930 A.2d 1264, 1272
([Pa.] 2007). Due diligence demands that the
petitioner take reasonable steps to protect his own
interests and explain why he could not have learned
the new facts earlier with the exercise of due
diligence. Commonwealth v. Monaco, 996 A.2d
1076, 1080 (Pa.Super. 2010).
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Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super. 2019).
Here, the record belies appellant’s claims. Indeed, as the PCRA court
noted:
[Appellant] claims that he was completely unaware of
Boseman and what was allegedly witnessed until 2014
when his sister and uncle attended a neighborhood
block party. However, in her affidavit, [appellant’s]
sister[,] Sharon Moore[,] states that she was at a
“24 & Thompson Street” reunion with “my
brother [sic] old friends,” who told her about
Boseman. Thus, Boseman was known to [appellant’s]
circle of friends and neighbors if they mentioned him
at a neighborhood block party. Moreover, [appellant]
testified on his own behalf at trial, and stated that on
the night of the murder, he left the house after talking
to Colefield and walked to 24th and Thompson, where
he had a conversation with “a few fellows” standing
on the corner. [(Notes of testimony, 11/19/80 at 84-
85.)] [Appellant] further testified that he saw Freddy
Tomlin in his car and that Tomlin gave him a ride to
his aunt’s house. [(Id. at 85.)] In Boseman’s
affidavit, he states that at the time of the shooting, he
was outside in a car “with two (2) other guys their
names are tall Bruce, real name is Bruce Ward
A.K. [sic] Bruce Earl, and Freddy Tomlin. Tall Bruce
got out of the car and went into the house, returned
quickly telling us that fat Bruce Porter had been shot
and we immediately drove off.” (Boseman Aff. ¶ 1).
Thus, [appellant] was aware of Tomlin at the time of
trial and any information Tomlin may have had about
the murder, including his alleged presence in the car
with Boseman and Ward, would have been easily
ascertainable before trial. As [appellant] has failed to
demonstrate that he could not have obtained this
evidence with the exercise of due diligence, no relief
is due.
PCRA court opinion, 6/3/19 at 7-8.
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Based on our review of the record, we find that the PCRA court’s
conclusion that appellant failed to exercise due diligence is supported by the
record and is free of legal error. Accordingly, appellant failed to plead or prove
any exception to the PCRA time-bar. Because appellant’s petition is untimely,
we do not have jurisdiction to consider the merits of his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/20
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