Com. v. Johnson, A.

C
J-S02034-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY JOHNSON                          :
                                          :
                    Appellant             :   No. 858 EDA 2020

          Appeal from the PCRA Order Entered February 25, 2020
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0203601-2001


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                         Filed: April 30, 2021

      Appellant, Anthony Johnson, appeals pro se from the post-conviction

court’s order denying, as untimely, his petition for relief, and motion for DNA

testing, filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

      On December 14, 2001, Appellant was convicted by a jury of rape,

involuntary deviate sexual intercourse, robbery, aggravated assault, and

aggravated indecent assault based on the following facts:

      On the evening of November 6, 2000, [the] victim[,] A.M.[,]
      exited the trolley in Philadelphia after work and began walking
      home. Appellant approached her on Windsor Avenue, placed his
      hands over her mouth, and dragged her into an alley. Appellant
      demanded money, and became agitated when the victim said that
      she had none.

      Appellant searched a gym bag that A.M. was carrying, stole her
      cell phone, and pushed her further into the alley. When the victim
      screamed, Appellant beat her until she was nearly unconscious.
      Appellant then penetrated A.M.’s vagina and anus with his penis,
J-S02034-21


     and inserted his penis into her mouth and ejaculated. After
     Appellant fled, the victim spat the semen from her mouth into a
     shirt from her gym bag. The victim went home, and her husband
     immediately took her to the hospital, where the shirt with the
     semen was given to police. Police were informed that A.M.’s
     assailant had taken her cell phone, and they began to monitor its
     use. The day after the crime, the phone was used twice to contact
     Franklin Harris, who told police that Appellant had called him from
     the phone in question.

     Harris took the police to Appellant, who insisted that he borrowed
     the cell phone from Robert Green while they were riding a trolley.
     Appellant agreed to have blood drawn for DNA testing. Police
     tracked down Mr. Green and ascertained that he was incarcerated
     on the day that Appellant purportedly borrowed A.M.’s cell phone
     from Mr. Green. Appellant’s DNA matched the DNA from the
     semen found on the victim’s shirt.

Commonwealth v. Johnson, No. 3443 EDA 2016, 

2017 WL 6629396

,

unpublished memorandum at 1 (Pa. Super. filed Dec. 29, 2017).

     Following his convictions, Appellant was sentenced to an aggregate term

of 25 to 50 years’ incarceration. This Court affirmed Appellant’s judgment of

sentence on August 26, 2004, and our Supreme Court denied his petition for

allowance of appeal on March 31, 2005. Commonwealth v. Johnson, 

860

A.2d 1129

(Pa. Super. 2004) (unpublished memorandum), appeal denied, 

871

A.2d 189

(Pa. 2005).

     Appellant thereafter filed a timely PCRA petition on May 2, 2005, and

counsel was appointed. The petition was ultimately denied, and Appellant did

not appeal. He then filed a second, pro se petition on January 12, 2009, which

was dismissed as untimely. Again, Appellant did not appeal. Instead, he filed

a third PCRA petition on September 16, 2010. Counsel was appointed, but

moved to withdraw.     Counsel was permitted to withdraw, and Appellant’s


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J-S02034-21



petition was denied. Appellant went on to file a fourth PCRA petition on July

10, 2014, which was dismissed as untimely.          On appeal, we affirmed.

Commonwealth v. Johnson, 

131 A.3d 81

(Pa. Super. 2015) (unpublished

memorandum).

        Appellant filed a fifth, pro se PCRA petition on May 23, 2016. Therein,

he claimed, inter alia, that
        1) the Commonwealth committed a Brady[1] violation when it
        failed to inform him that semen discovered in the victim’s throat
        was tested but the results were inconclusive; 2) the
        Commonwealth committed a Brady violation by not revealing to
        him that blood was discovered on the same shirt that the victim
        used to collect his semen; 3) trial counsel was ineffective for
        permitting the jury to hear that semen was found in the victim’s
        throat when DNA testing of that semen was inconclusive; 4) trial
        counsel was ineffective for failing to obtain DNA testing of the
        blood on the shirt that also contained Appellant’s semen[.]

Johnson, No. 3443 EDA 2016, 

2017 WL 6629396

, unpublished memorandum

at 2.    The PCRA court dismissed Appellant’s petition as untimely, and this

Court affirmed on appeal, concluding that Appellant had failed to demonstrate

that he could not have discovered the facts underlying his Brady claims

earlier, and that his challenges to counsel’s effectiveness did not satisfy any

exception to the PCRA’s timeliness requirement.       See

id. at 3.

  After we

affirmed the order denying Appellant’s fifth PCRA petition, our Supreme Court

denied Appellant’s petition for allowance of appeal.      Commonwealth v.

Johnson, 

181 A.3d 1280

(Pa. 2018).



____________________________________________


1   Brady v. Maryland, 

373 U.S. 83

(1963).

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        On July 9, 2018, Appellant filed the pro se PCRA petition underlying his

present appeal. He filed an amended petition on August 10, 2018, as well as

a motion for DNA testing on September 10, 2018.            In his PCRA petition,

Appellant raised governmental-interference and Brady claims premised on

the Commonwealth’s alleged failure to disclose the DNA testing results of the

blood and semen found in the victim’s throat and on her clothing. He also

argued that his trial counsel acted ineffectively for failing to request DNA

testing, and vaguely claimed that he was denied the assistance of counsel on

appeal.

        On December 17, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to deny without a hearing both Appellant’s motion for DNA testing,

and his untimely PCRA petition. Appellant did not respond, and on February

25, 2020, the PCRA court issued an order denying both his motion for DNA

testing and his petition. Appellant filed a timely, pro se notice of appeal. The

court did not order him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, but it issued a Rule 1925(a) opinion on August 17,

2020.

        Herein, Appellant raises eight issues for our review:

        [I.] Did … [the] PCRA court obstruct [Appellant’s] right to appeal
        by failing to advise [Appellant] of his right to appeal from a final
        order that is required by [Pa.R.Crim.P.] 907(4)?

        [II.] Did … [the] PCRA court obstruct [Appellant’s] right to appeal
        by depriving [Appellant] of his right to have the assistance of
        appointed counsel to appeal [a] final order that is required by
        [Pa.R.Crim.P.] 904(f)?


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J-S02034-21


      [III.] Did … [the Commonwealth’s] fail[ure] to disclose
      exculpatory DNA [testing results] of semen deprive [Appellant] of
      a fair trial and right to confrontation under [the] Sixth Amendment
      and Article []1[,] Section []9[] of [the] Pennsylvania Constitution?

      [IV.] Did … [the] PCRA court use [a] motion denying DNA testing
      to improperly dismiss [Appellant’s] March 18, 2008 Amended
      PCRA petition, as cited by Com[monwealth] v. Scarborough,
      

64 A.3d 602

([Pa.] 2013)?

      [V.] Did … [the] PCRA court present false information of material
      fact in its opinion dated August 17, 2020, that evidence requested
      for DNA testing was already subjected to DNA testing, but can not
      [sic] be located in any record?

      [VI.] Did … the denial of [Appellant’s] request for DNA testing by
      the PCRA court[] deprive [Appellant] of corrective judicial process
      to obtain exculpatory DNA information from semen and blood, that
      [the Commonwealth] failed to disclose at trial, constitute
      deprivation of liberty without due process under [the] 14th
      Amendment of [the] United States Constitution?

      [VII.] Did … trial counsel breach his duty to investigate,
      recognized by Strickland v. Washington, [

466 U.S. 668

      (1984),] [thereby] prejudic[ing Appellant’s] only line of defense
      before trial, by failing to investigate and pursue DNA testing of
      semen and blood that [would] have provided counsel with the
      necessary DNA information … to … establish[] [Appellant’s]
      innocence with before trial?

      [VIII.] Was … [Appellant] deprived of his Sixth Amendment right
      to counsel at a critical stage of his trial, by counsel’s failure to
      pursue DNA testing of [a] semen sample at trial, that could have
      exonerated [Appellant], [which] amount[ed] to a denial of
      assistance as cited by United States v. Cronic[, 

466 U.S. 648

      (1984)]?

Appellant’s Brief at v-vi (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 

923 A.2d 1169

, 1170 (Pa. 2007). We must begin by addressing the

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J-S02034-21



timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. See Commonwealth v. Bennett, 

930 A.2d 1264

, 1267

(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including

a second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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

              (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). Additionally, section 9545(b)(2) requires that

any petition attempting to invoke one of these exceptions “be filed within one

year of the date the claim could have been presented.”                42 Pa.C.S. §

9545(b)(2).



                                         -6-
J-S02034-21



      Here, Appellant’s judgment of sentence became final in 2005 and thus,

his present petition, filed in 2018, is facially untimely. For this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b).

      Appellant fails to meet this burden. Notably, he offers no discussion of

what timeliness exception he meets, and the issues he raises do not satisfy

any exception. For instance, in Appellant’s first and fourth issues, he claims

that the PCRA court that denied his first, timely PCRA petition and motion for

DNA testing erred by not issuing an order formally dismissing his PCRA

petition, and by not advising him of his right to appeal from the denial of his

motion for DNA testing. See Appellant’s Brief at 1, 10. He also claims, in his

second issue, that the same PCRA court deprived him of his right to have

counsel on appeal from the denial of his first PCRA petition by granting

counsel’s motion to withdraw.

Id. at 3.

Appellant fails to explain how these

assertions meet any of the above-stated timeliness requirements. Certainly,

Appellant could have discovered and challenged earlier the prior PCRA court’s

purported errors in these regards. Accordingly, these claims do not overcome

the timeliness requirements of the PCRA.

      In his third and fifth issues, Appellant claims that the Commonwealth

failed to disclose exculpatory DNA test results.

Id. at 6.

He argues that due

to this failure by the Commonwealth, the PCRA court should have granted his

motion for DNA testing.

Id. at 7.

We disagree. First, this Court has already

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J-S02034-21



rejected Appellant’s attempt to meet a timeliness requirement by claiming

that the Commonwealth failed to disclose exculpatory DNA evidence.                       See

Johnson, No. 3443 EDA 2016, unpublished memorandum at 3. In regard to

the PCRA court’s denial of Appellant’s motion for DNA testing, the court

observed that the “DNA was tested, matched [Appellant’s] DNA[,] and the

evidence was presented at trial as stipulated during [a] June 12, 2008

evidentiary hearing” on Appellant’s first PCRA petition. PCRA Court Opinion,

8/17/20, at 4. In other words, the DNA testing that Appellant sought in his

present motion has already been done, and the results were admitted as

evidence at trial.         Accordingly, Appellant has failed to meet the statutory

requirements for obtaining DNA testing. See Commonwealth v. Williams,

35 A.3d 44

, 49 (Pa. Super. 2011) (“The [PCRA] statute sets forth several

threshold requirements to obtain DNA testing: (1) the evidence specified must

be available for testing on the date of the motion; (2) if the evidence was

discovered         prior    to     the   applicant’s     conviction,    it   was         not

already DNA tested because (a) technology for testing did not exist at the

time   of    the     applicant’s    trial;   (b)   the   applicant’s   counsel     did   not

request testing in a case that went to verdict before January 1, 1995; or (c)

counsel sought funds from the court to pay for the testing because his client

was indigent, and            the court refused     the   request despite     the    client's

indigency.”) (citing 42 Pa.C.S. § 9543.1(a)(2)) (emphasis added).

       Appellant’s remaining three issues raise ineffective assistance of counsel

claims. “It is well settled that allegations of ineffective assistance of counsel

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will not overcome the jurisdictional timeliness requirements of the PCRA.”

Commonwealth v. Wharton, 

886 A.2d 1120

, 1127 (Pa. 2005).

        In sum, none of Appellant’s post-conviction claims meets a timeliness

exception and, thus, we are without jurisdiction to review the merits of his

issues. Moreover, because the DNA testing sought by Appellant has already

been done, the PCRA court did not err by denying his motion for DNA testing.

        Order affirmed.

        Judge Nichols did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/21




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