Com. v. Johnson, M.

J-S45017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS JOHNSON :
:
Appellant : No. 791 EDA 2022
Appeal from the PCRA Order Entered March 4, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0006098-1998
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS JOHNSON :
:
Appellant : No. 792 EDA 2022
Appeal from the PCRA Order Entered March 4, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0007000-1998
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS JOHNSON :
:
Appellant : No. 793 EDA 2022
Appeal from the PCRA Order Entered March 4, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0007001-1998
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S45017-22
:
v. :
:
:
MARCUS JOHNSON :
:
Appellant : No. 794 EDA 2022
Appeal from the PCRA Order Entered March 4, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0000576-1999
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED MARCH 28, 2023
Appellant, Marcus Johnson, appeals pro se from the March 4, 2022 order
of the Court of Common Pleas of Delaware County dismissing as untimely his
serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are not at issue.
Briefly, the underlying convictions arose out of four separate robberies of two
“Wawa” convenience stores: the first in Upper Darby on September 22, 1998,
and the following three at the same “Wawa” in Yeadon on October 5, October
7, and October 13, 1998. The jury, on March 16, 2000, found Appellant guilty
of the charged offenses, and the trial court imposed sentence on May 2, 2000.
Appellant took a direct appeal to this Court, and we affirmed the judgment of
sentence on August 29, 2001. Commonwealth v. Johnson, No. 1891 EDA
2000, unpublished memorandum (Pa. Super. filed August 29, 2001).
Appellant filed his first PCRA petition on September 20, 2001, which the
PCRA court denied without a hearing. This Court, on June 30, 2003, affirmed
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the denial of PCRA relief, see Commonwealth v. Johnson, No. 2596 EDA
2002, unpublished memorandum (Pa. Super. filed June 30, 2003), and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. See Commonwealth v. Johnson, 847 A.2d 1280 (Pa. 2004).
On December 16, 2009, Appellant filed his second PCRA petition, which
the PCRA court denied on December 19, 2011, after holding an evidentiary
hearing. On appeal, we affirmed. See Commonwealth v. Johnson, No.
336 EDA 2012, unpublished memorandum (Pa. Super. filed November 9,
2012).
On September 19, 2013, Appellant filed his third PCRA petition, which
he amended on December 12, 2014. In his third petition, as amended,
Appellant alleged newly-discovered facts,1 which, in Appellant’s estimation,
qualified as a Brady2 violation. The PCRA court dismissed the petition on
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1 In his third PCRA petition, Appellant alleged that
the discovery that witness Jackie Hayes had spoken with police
after the crimes and also with a composite sketch artist, and that
the police had told a second witness, Lakeisha Robinson, that they
“had their man” before the identification of Appellant, amounted
to the discovery of new evidence and a Brady violation by the
police[.]
Johnson, No. 3759 EDA 2015, unpublished memorandum, at 8 (Pa. Super.
filed December 12, 2016.
2 Brady v. Maryland, 373 U.S. 83 (1963) (holding that a due process
violation occurs when the state suppresses or fails to disclose material
exculpatory evidence). A Brady claim requires a petitioner to show “(1) the
prosecutor has suppressed evidence, (2) the evidence, whether exculpatory
(Footnote Continued Next Page)
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November 17, 2015. On appeal, we affirmed. See Commonwealth v.
Johnson, No. 3759 EDA 2015, unpublished memorandum (Pa. Super. filed
December 12, 2016).
On July 26, 2017, Appellant filed a pro se PCRA petition seeking DNA
testing, in addition to PCRA relief for a Brady violation (i.e., Appellant alleged
that the Commonwealth never disclosed exculpatory police reports from
eyewitnesses). On appeal, Appellant abandoned the Brady violation claim,
focusing solely on the PCRA court’s refusal to order a DNA testing. We
affirmed. See Commonwealth v. Johnson, No. 3285 EDA 2017,
unpublished memorandum (Pa. Super. filed December 14, 2018).
On January 30, 2019, Appellant filed the instant pro se PCRA petition,
which was supplemented and amended several times. The most recent
version of the PCRA petition at issue in this appeal was filed on August 3,
2021. In his most recent PCRA petition, Appellant argues that the instant
petition, while facially untimely, meets the governmental interference
exception. Specifically, Appellant argues that the Commonwealth committed
a Brady violation by suppressing or withholding police/incident reports,3 and
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or impeaching, is helpful to the defendant, and (3) the suppression prejudiced
the defendant.” Commonwealth v. Carson, 913 A.2d 220, 244 (Pa. 2006).
3 While Appellant speaks generally of police reports being withheld, in his most
recent petition, Appellant mostly focuses on a statement given by witness
Jacqueline Hayes to the police on October 5, 1998, in which, allegedly, Hayes
described the perpetrator of the robbery as 5’6’’ tall. Other reports describe
the perpetrator as 5’ 9’’ and 6’ 0” tall. Appellant argues that the Hayes report
has been suppressed by the Commonwealth.
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911 police recordings, which, in Appellant’s understanding, provided
exculpatory/impeachment evidence capable of changing the “tenor” of
Appellant’s trial. PCRA Court Opinion, 6/20/22 at 5.
On March 4, 2022, the PCRA court dismissed Appellant’s petition. This
appeal followed.
On appeal, Appellant raises the following question for our review:
Did the PCRA court err in summarily dismissing Appellant’s
petition without a hearing pertaining to unknown facts, 42
Pa.C.S.A. § 9545(b)(1)(ii); governmental interference, 42
Pa.C.S.A. § 9545(b)(1)(i); after discovered facts, 42 Pa.C.S.A.
§ 9543(A)(2)(vi), and by not following the Pennsylvania Supreme
Court’s directive in Commonwealth v. Small, 239 A.3d 1267(Pa. 2020) pertaining to the public record presumption?
Appellant’s Brief at 4.
When reviewing the propriety of an order pertaining to PCRA relief,
we consider the record in the light most favorable to the prevailing
party at the PCRA level. This Court is limited to determining
whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error. We grant
great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support
in the certified record. However, we afford no such deference to
the post-conviction court’s legal conclusions. We thus apply a de
novo standard of review to the PCRA [c]ourt’s legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). 4 “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. (Frank) Chester, 895
A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted)
(overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267(Pa. 2020)). As timeliness is separate and distinct from the merits of
Appellant’s underlying claims, we first determine whether this PCRA petition
is timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
If it is not timely, we cannot address the substantive claims raised in the
petition. Id.The instant PCRA petition is facially untimely.5 Appellant argues,
however, that he meets the governmental interference timeliness exception,
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4 The one-year time limitation can be overcome if a petitioner (1) alleges and
proves one of the three exceptions set forth in Section 9545(b)(1), and (2)
files a petition raising this exception within one year of the date the claim
could have been presented, see 42 Pa.C.S.A. § 9545(b)(2).
5 Appellant was sentenced on May 2, 2000. We affirmed Appellant’s judgment
of sentence on August 29, 2001. Appellant did not file a petition for allocatur
to our Supreme Court. Thus, Appellant’s judgment of sentence became final
on September 28, 2001. Accordingly, Appellant had until September 30,
2002, to file a timely PCRA petition. Accordingly, the instant pro se PCRA
petition, which was filed on January 30, 2019, is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1).
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as set forth in 42 Pa.C.S.A. § 9545(b)(1)(i), and the newly-discovered fact
exception, as set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). 6 Specifically,
Appellant argues that the PCRA court erred in not holding an evidentiary
hearing on his petition “when the Commonwealth failed to answer Appellant’s
pleadings in a sufficient matter for the [PCRA court] to establish jurisdiction.”
Appellant’s Brief at 16. To this end, Appellant explained:
For example, the Commonwealth never addressed Appellant’s
averments that they withheld evidence in violation of [Brady], by
informing the [PCRA court] whether the evidence was disclosed to
trial counsel, or if it wasn’t, whether or not the claim
governmental interference could have been brought earlier with
the exercise of due diligence.
The Commonwealth refused to address these pertinent questions
which goes to the jurisdiction of the court to address the
controversy. Notwithstanding this, the Lower Court dismissed the
petition as untimely, despite the record being completely silent on
genuine issues of material fact. A remand is necessary to
establish the record.
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6 Section 9545(b), in relevant part, reads:
(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[.]
42 Pa.C.S.A. § 9545(b)(1)(i)-(ii).
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Moreover, the Lower Court erred as a matter of law, and abused
its discretion by finding that Commonwealth’s witness Jacqueline
Hayes recent revelations did not constitute a “newly discovered
fact.” A remand is necessary to establish record.
Id. at 16-17 (verbatim).
Appellant’s argument section spans several pages of his brief, mostly
focused on the merits of his Brady claim. To the extent that Appellant
discusses the timeliness of his petition, the discussion is premised on several
faulty grounds.
Appellant apparently believes that his claim of governmental
interference is proved by the simple fact that the Commonwealth did not
dispute his allegations of wrongdoing. Appellant fails to appreciate that it is
Appellant’s burden to prove the timeliness of his petition. Whether the
Commonwealth addresses timeliness is irrelevant. “As our Supreme Court has
repeatedly stated, the petitioner maintains the burden of pleading and proving
that one of the exceptions applies. Johnson, No. 3795 EDA 2015, at *6
(citing Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)).
Appellant seems to believe, erroneously, that an allegation of a Brady
violation exempts him from proving the timeliness of the petition. Stokes,
supra; Abu-Jamal, 941 A.2d at 1268 (“Although a Brady violation may fall
within the governmental interference exception, the petitioner must plead and
prove the failure to previously raise the claim was the result of interference
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by government officials, and the information could not have been obtained
earlier with the exercise of due diligence.”).
Furthermore, Appellant seems to believe that he can request and obtain
an evidentiary hearing “to fl[u]sh out” the facts surrounding the alleged
interference. Amended PCRA Petition, 8/3/21, at 10. Appellant must plead
and prove he is entitled to relief and cannot use a hearing to find evidence
supporting his claim. “[A]n evidentiary hearing is not meant to function as a
fishing expedition for any possible evidence that may support some
speculative claim . . . .” Commonwealth v. Roney, 79 A.3d 595, 605 (Pa.
2013) (quotation marks and citations omitted).
There are, however, additional problems with the timeliness of
Appellant’s petition. The thrust of Appellant’s argument throughout the
multiple filings and proceedings, at all levels, is that his conviction resulted
from some sort of misidentification by eyewitnesses, that the Commonwealth
has proof of inconsistent witnesses’ identification, and that the Commonwealth
unlawfully withheld or suppressed said inconsistent identification.
Appellant fails to appreciate that the issue of eyewitness identification
and potential inconsistencies, in particular with eyewitness Hayes, has been
addressed in prior proceedings, including his preliminary hearing, trial, PCRAs,
direct appeal, and appeals from denial of PCRA relief. Indeed, focusing on the
PCRAs only, as noted before, the issue was raised, unsuccessfully, in
Appellant’s third, fourth, and now, in his fifth PCRA petition. Thus, no relief is
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due because the issue of alleged conflicting eyewitness identifications by
Hayes qualifies as a “previously litigated” issue.7 See 42 Pa.C.S.A.
§ 9544(a)(2).
Similarly, and more importantly (giving that this is the main claim raised
here), to the extent Appellant argues that the Commonwealth unlawfully
withheld a statement made by Hayes, this very same claim already has been
raised and addressed in previous PCRA petitions. See Johnson, No. 3759
EDA 2015. As such, no relief is due on Appellant’s Brady claim as it was
previously litigated.
Appellant, in his own words, even admits that the very same issue he
raises here already was raised in a previous, unsuccessful appeal. To this end,
Appellant states:
Around July of 2013, Appellant’s family hired an investigator who
went to visit Jacqueline Hayes the October 5, 1998 robbery victim.
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7 See Commonwealth v. Collins, 888 A,2d 564 (Pa. 2005):
[The term] “issue” refers to the discrete legal ground that was
forwarded on direct appeal and would have entitled the defendant
to relief. See, e.g., Sanders v. United States, 373 U.S. 1, 83
S. Ct. 1068, 10 L.Ed.2d 148 (1963) (defining “grounds” as “a
sufficient legal basis for granting the relief sought by the
applicant”). The theories or allegations in support of the ground
are simply a subset of the issue presented. Stated another way,
there can be many theories or allegations in support of a single
issue, but ultimately, § 9544(a)(2) refers to the discrete legal
ground raised and decided on direct review. Thus, at the most
basic level, this section prevents the relitigation of the same legal
ground under alternative theories or allegations.
Id. at 570 (footnote omitted).
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Ms. Hayes was shown a picture of Kevin Powell[8] the confessor to
the September 22, 1998 robbery. It was at this time that Ms.
Hayes stated in a post-trial statement that she never identified
Appellant as committing any crime and that the perpetrator was
5’6 and that a person of Appellant’s stature 6’0 would have stood
out. Ms. Hayes stated that the night of the crime she was taken
to a small precinct and gave police a statement identifying the guy
as 5’6. . . .
Based upon this information, Appellant filed a PCRA petition
alleging inter alia a [Brady] violation. Trial counsel never had
none of this material. It’s worth noting, that the Commonwealth
throughout the proceedings never once stated that the evidence
was disclosed to trial counsel.
The petition was ultimately denied without a hearing. The district
attorney’s argument opposing the petition was predicated upon
that the evidence could have obtained earlier without any
argument as to how.
This Court affirmed the lower court’s decision. [Johnson, No.
3759 EDA 2015]. An allocatur petition to the Pennsylvania
Supreme Court was denied and a request to file successive habeas
petition in the third Circuit was denied.
Appellant’s Brief, at 11-13 (citations to exhibits omitted).
Thus, because the Brady claim has been previously litigated, Appellant
is unable to meet the governmental interference exception.
In his questions for our review, Appellant appears to rely on the newly-
discovered fact exception to overcome the facial untimeliness of his underlying
petition. To the extent Appellant raises a newly discovered fact exception
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8 “Kevin Powell, another state inmate, . . . supposedly admitted to
participating in an armed robbery that [Appellant] had been convicted of.”
Commonwealth v. Johnson, No. 3759 EDA 2015, at 3, unpublished
memorandum (Pa. Super. filed December 12, 2016) (footnote omitted).
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based on Hayes’s 2013 statement, we note that the claim has been raised
before. Johnson, No. 3759 EDA 2015. Additionally, Appellant makes the
same mistake he made in his previous unsuccessful attempt at PCRA relief.
The statement from eyewitness Jacqueline Hayes is from 2013, and nowhere
does Appellant explains why he waited approximately 15 years to contact her.
Indeed, in his previous, unsuccessful appeal we noted:
Appellant maintains he is entitled to the section 9545(b)(1)(ii)
PCRA timeliness because he filed his PCRA petition within 60 days
of receiving an investigative report alleging that Hayes gave a
statement to the police[.] However, . . . Hayes testified at
Appellant’s pre-trial hearing and trial, and [was] subject to cross-
examination by Appellant. Appellant’s petition does not explain,
as it must, why he waited 15 years to contact [this witness] and
question [her] further. Failing to speak with known, available
witnesses for 15 years does not amount to reasonable diligence
on Appellant’s part.
Commonwealth v. Johnson, No. 3759 EDA 2015, unpublished
memorandum, at 9 (Pa. Super. filed December 12, 2016) (footnote omitted).
Thus, Appellant is unable to meet the newly-discovered fact exception.
Because Appellant failed to prove that the instant petition is timely, we are
unable to entertain the merits of the petition.9
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9 In passing we note that, even if the Brady issue had not been previously
litigated, or if it was otherwise timely, Appellant would not have been entitled
to relief because Hayes’s statement “would be merely cumulative of
Appellant’s cross-examination at trial and/or could be used merely to impeach
the witness[.]” Johnson, No. 3759 EDA 2015, at 10.
Even if the statement existed, Appellant would not be eligible for relief because
the statement would not qualify as “after-discovered evidence” under 42
(Footnote Continued Next Page)
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Finally, Appellant argues he is entitled to a remand due to the PCRA
court’s failure to provide a Rule 907 notice. We disagree.
The PCRA court noted:
While the dismissal notice is mandatory, dismissals have been
upheld in the absence of said notice. In Commonwealth v.
Pursell, [749 A.2d 911 (Pa. 2000)], the [Supreme Court] denied
relief where [the] petition was dismissed without notice because
defendant had failed to prove one of the exceptions to the one-
year filing period.
PCRA Court Opinion, 6/20/22, at 5.
Applying Pursell, the PCRA court noted: “[Appellant] has failed to plead
and prove the newly-discovered facts exception or the governmental
interference exception to the PCRA jurisdictional time bar. . . . Therefore,
[the PCRA court] lacks jurisdiction to review [Appellant]’s PCRA petition, and
thus it was adequate for it to be dismissed without notice. Id. at 6.
Appellant, however, argues that reliance on Pursell is misplaced
because, according to Appellant, the Pursell rule is limited to ineffective
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Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, a petitioner must prove
that (1) the evidence has been discovered after trial and it could not have
been obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict. See
Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (internal quotation
marks and citation omitted). Because the statement at issue here “would be
merely cumulative of Appellant’s cross-examination at trial and/or could be
used merely to impeach the witness” Johnson, supra, the statement does
not qualify as after-discovered evidence, preventing Appellant from being
eligible for relief under the PCRA.
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assistance of counsel situations, and it does not extend to due process
violations (Brady violations). Appellant’s Brief at 42-43. Appellant contends
the difference in treatment between the two situations is that ineffective
assistance of counsel does not provide an independent ground to overcome
the PCRA time restrictions. Id. at 43 (citing Commonwealth v. Gamboa-
Taylor, 753 A.2d 780 (Pa. 2000)). In other words, Appellant apparently
believes that Brady violation claims are independently enforceable,
regardless of their timeliness.
Needless to say, Appellant offers no authority for his novel argument.
Indeed, caselaw abounds that all claims that fall within the purview of the
PCRA must be timely raised, even if they raise issues of constitutional
dimension. See Commonwealth v. Breakiron, 781 A.2d 94, 100-01 (Pa.
2001); Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (“we have
already held that, in the context of the jurisdictional timeliness restrictions on
the right to bring a PCRA petition, the constitutional nature of a collateral claim
does not overcome the legislature’s restrictions on collateral review”) (internal
citation omitted).
Regarding the specific issues raised here, we note the Pursell Court’s
statement regarding the absence of a Rule 907 notice is not as restrictive as
Appellant argues. Indeed, the Supreme Court stated:
We recognize the merit in Appellant’s first claim that the trial court
failed to comply with [Rule 907] when it dismissed Appellant’s
petition without the requisite notice in advance. While we do not
condone the trial court’s error in this regard, we will not provide
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Appellant with relief on this issue as our independent review has
determined that Appellant failed to invoke the jurisdiction of the
trial court by failing to plead and prove the applicability of the
timeliness exceptions contained in 42 Pa.C.S. § 9545(b)(1)(i)–
(iii).
Pursell, 749 A.2d at 917, n.7. See also Commonwealth v. Taylor, 65 A.3d
462, 468 (Pa. Super. 2013) (Even when a petitioner preserves a claim that a
PCRA court failed altogether to provide notice of dismissal under Rule 907, it
does not automatically warrant reversal when the petition is untimely).
Here, the PCRA court denied Appellant’s PCRA petition as untimely, yet
nothing in his argument regarding the failure of the PCRA court to issue a Rule
907 notice in this case bears upon the timeliness of his petition. Indeed,
Appellant has failed to demonstrate that he was adversely affected at all by
the absence of a Rule 907 notice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2023
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