Com. v. Johnson, E. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ELWOOD JOHNSON :
:
Appellant : No. 574 EDA 2022
Appeal from the PCRA Order Entered February 1, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0009065-2006
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED APRIL 26, 2023
Elwood Johnson (“Johnson”) appeals pro se from the denial of his
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
In September 2006, police began investigating Johnson's involvement
in a drug trafficking organization (“the organization”). A confidential
informant (“CI”) told the authorities Johnson possessed and sold cocaine. The
CI conducted three controlled purchases of narcotics from Johnson; during
each, Johnson drove the same black Honda. Through surveillance, the police
confirmed Johnson would often drive that car to his mother's house at 1317
Locust Street in Norristown. In October 2006, a second CI told police that
Johnson stored illegal drugs at his mother’s home. See Commonwealth v.
Johnson, 11 A.3d 1014 (Pa. Super. 2010) (unpublished memorandum at *1).
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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Police obtained court orders to intercept the telephone conversations of
several members of the organization, including Johnson. The intercepted
conversations revealed Johnson had purchased cocaine from the leader of the
organization in October 2006. Conversations between Johnson and that man
confirmed Johnson sold the cocaine he bought and planned to buy more. Later
that month, police officers executed a search warrant for Johnson’s mother’s
home and recovered nearly 250 grams of cocaine. They also arrested the
leader of the organization and another member, who both agreed to testify
against Johnson at trial. See id.
The Commonwealth filed a criminal complaint against Johnson in
October 2006 (“the October complaint”), then withdrew it and filed a
complaint that included additional charges in November 2006 (“the November
complaint”). At a preliminary arraignment later that month, the court advised
Johnson of the additional charges. See id. at *5.
In December 2007, Johnson filed a pre-trial motion to suppress the
evidence obtained during the search of his mother’s home, asserting the
absence of probable cause to support the issuance of the search warrant.
Johnson further argued the warrant contained material misrepresentations
and omitted material information. In September 2008, the court denied
Johnson’s suppression motion. See id. at *1; Commonwealth v. Johnson,
108 A.3d 120 (Pa. Super. 2014) (unpublished memorandum at *8).
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The jury convicted Johnson of possessing a controlled substance with
intent to deliver, violation of the corrupt organizations act, and related
offenses. The court sentenced Johnson to an aggregate term of sixteen and
one-half to thirty-three years of imprisonment. This Court affirmed Johnson’s
judgment of sentence on direct appeal. See Johnson, 11 A.3d 1014. Our
Supreme Court denied allowance of appeal on March 9, 2011. See
Commonwealth v. Johnson, 20 A.3d 485 (Pa. 2011).
Johnson filed a series of unsuccessful PCRA petitions. Relevant to this
appeal, his first PCRA petition alleged trial counsel’s ineffectiveness for failing
to challenge alleged material misrepresentations in, and omissions from, the
search warrant and affidavit of probable cause, see PCRA Court Opinion,
5/2/22, at 2 n.4; his fourth PCRA petition asserted that the October 2006
complaint, which he allegedly first received in 2012, did not include all of the
charges against him, the October 2006 complaint constituted Brady2 material,
and his delayed discovery of the October 2006 complaint satisfied the
government interference and newly-discovered facts exceptions to the
jurisdictional time bar, see Johnson, 108 A.3d 120 (Pa. Super. 2014)
(unpublished memorandum at *4-5);3 and his eighth PCRA petition alleged
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2See Brady v. Maryland, 373 U.S. 83 (1963) (addressing the prosecution’s
obligation to provide a defendant with exculpatory information).
3In affirming the dismissal of Johnson’s petition on timeliness grounds, this
Court specifically noted that Johnson had been informed of the charges in the
(Footnote Continued Next Page)
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that the case file did not contain an arrest warrant and he only obtained a
copy of that warrant when his family requested it. See Commonwealth v.
Johnson, 224 A.3d 788 (Pa. Super. 2019) (unpublished memorandum at *8-
9).
In August 2021, Johnson filed the instant pro se PCRA petition, in which
he asserted that he established the government inference and newly-
discovered facts exceptions to the time-bar, see 42 Pa.C.S.A. § 9545(b)(1)(i)-
(ii), based on his recent discovery that the arrest warrant had been absent
from his case file for eight years, and of new facts contained in the October
2006 complaint and probable cause affidavit. See Petition for Post Collateral
Relief, 8/4/21, at 2-7. Johnson also alleged that the Commonwealth violated
Brady by failing to disclose the October 2006 complaint and probable cause
affidavit. See id.
Private counsel entered his appearance. The PCRA court issued a notice
of intent to dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907,
noting that in Johnson’s eighth PCRA petition he had alleged unawareness of
the arrest warrant until 2018, and that this Court had affirmed the denial of
that petition as untimely filed. See Notice of Intent to Dismiss, 11/5/21, at
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October 2006 complaint at his November 2006 preliminary hearing and
informed of the charges in the November complaint at his preliminary
arraignment later in November 2006. See Johnson, 108 A.3d 120(unpublished memorandum at *6-8). This Court also noted that at a 2008
suppression hearing, the trial court addressed the existence of probable cause
for the search warrant. See id. at *6.
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2, citing Commonwealth v. Johnson, 224 A.3d 788 (Pa. Super. 2019)
(unpublished memorandum at *4) (rejecting Johnson’s claim that he was
unaware that there was no arrest warrant in this case). Johnson filed a pro
se response. Private counsel filed a motion to withdraw as counsel. The PCRA
court dismissed Johnson’s petition. Johnson filed a timely notice of appeal.
Both he and the PCRA court complied with Pa.R.A.P. 1925.
Johnson presents the following issues for appellate review:
[1.] Whether the [PCRA] court abused its discretion when
declaring [Johnson’s] PCRA petition time-barred, when [Johnson]
filed within the one year mandate of § 9545(b)(2), after
discovering newly-discovered facts and go[v]ernmental
interference . . . ?
[2.] Whether the [PCRA] court abused its discretion by not
giv[ing] [Johnson’s] Brady claim a proper Brady analysis when
[Johnson] has satisfied all three . . . prong[s] of Brady and the
claim was supported by the record?
[3.] Whether PCRA counsel was ineffective for not filing an
amended PCRA petition and/or not investigating [Johnson’s]
claims?
Johnson’s Brief at 3.
Johnson’s first issue implicates the timeliness of a PCRA petition. Our
standard of review of the dismissal of a PCRA petition is limited to ascertaining
whether the evidence supports the determination of the PCRA court and
whether the ruling is free of legal error. See Commonwealth v. Andrews,
158 A.3d 1260, 1263 (Pa. Super. 2017). The appellant bears the burden to
demonstrate that the PCRA court erred and his claim merits relief. See
Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa. Super. 2019).
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All PCRA petitions, including second or subsequent petitions, must be
filed within one year of the date that the underlying judgment of sentence
becomes final. See 42 Pa.C.S.A. §9545(b)(1). A judgment becomes final “at
the conclusion of direct review . . . or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Johnson concedes the untimeliness of the instant PCRA petition filed in
August 2021 because he did not file it within one year of his convictions
becoming final on June 9, 2011.4 In his first issue, he asserts that he
established the government interference and newly-discovered facts
exceptions to the PCRA’s timeliness requirements. See Johnson’s Brief at 8;
see also PCRA Petition, 8/4/21, at 2-3.
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner can plead and prove one of three exceptions set forth in section
9545(b)(1)(i)-(iii). See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.
Super. 2013) (providing that a PCRA court must dismiss an untimely petition
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4By rule, Johnson had ninety days after March 9, 2011 to petition for writ of
certiorari. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v.
Bankhead, 217 A.3d 1245, 1247 (Pa. Super. 2019); U.S. Sup. Ct. R. 13.1.
Because he did not do so, his judgment of sentence became final on June 9,
2011. Accordingly, Johnson had until June 9, 2012 to file a timely PCRA
petition.
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if no exception is pleaded and proven). The government interference
exception permits adjudication of the substance of an otherwise untimely
PCRA petition if the petitioner pleads and proves that “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[.]” 42
Pa.C.S.A. § 9545(b)(1)(i). The newly-discovered facts exception applies if
“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). A petitioner invoking one of these exceptions must
file a petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
Johnson asserts that he established the time-bar exceptions because he
only learned about the suppressed October 2006 complaint and arrest warrant
in June 2021.
The PCRA court rejected Johnson’s asserted exceptions related to the
October 2006 complaint and the arrest warrant. It specifically noted that from
Johnson’s arrest until he filed the serial PCRA petition at issue, he has
repeatedly raised issues of alleged inadequacies and omissions regarding the
October 2006 complaint, the affidavit of probable cause, the arrest warrant,
and the bills of information. See PCRA Court Opinion, 5/2/22, at 2. The
PCRA court also repeated this Court’s assertions that it “beggars belief” that
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Johnson could have been unaware of the arrest warrant for more than one
decade. See id. at 3, citing Johnson, 224 A.3d 788 (unpublished
memorandum at *4).
The record supports the PCRA court’s factual findings and legal
conclusions. Johnson raised a claim concerning the October 2006 complaint
in his fourth and eighth PCRA petitions. Thus, Johnson did not show that he
recently discovered the October 2006 complaint. See Johnson, 108 A.3d
120 (unpublished opinion at *4-5). Similarly, Johnson cannot show
concealment of the arrest warrant where he asserted a similar claim in his
eighth PCRA petition. See Johnson, 224 A.3d 788 (unpublished opinion at
*4). No time-bar exception therefore applies.
Johnson’s second issue asserts that the PCRA court abused its discretion
by declining to review his Brady claim. A Brady violation requires proof of
three elements, i.e., that: (1) the evidence withheld must be favorable to the
accused either because it is exculpatory or because it is impeaching; (2) the
state suppressed the evidence willfully or inadvertently; and (3) prejudice
ensued. See Commonwealth v. Natividad, 200 A.3d 11, 26 (Pa. 2019). A
defendant bears the burden to prove that the Commonwealth withheld or
suppressed evidence. See Commonwealth v. Ly, 980 A.2d 61, 75 (Pa.
2009).
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Johnson asserts that his claim satisfies the exception and entitles him
to de novo review of his legal claim that the Commonwealth violated Brady
by withholding the October 2006 complaint and arrest warrant.
The PCRA court stated that Johnson’s Brady claim is premised on the
withholding of documents from him that counsel in fact knew of and that
Johnson has repeatedly cited during the course of PCRA proceedings, that
Johnson’s assertion that he had just been made aware of these documents
was not credible, and therefore the Brady claim merited no further analysis.
See PCRA Court Opinion, 5/2/22, at 3-4.
Evidence of record and Johnson’s own pleadings establish that Johnson
had the documents he claims were withheld from him for an extensive period
of time. Because Johnson’s Brady claim does not establish a valid time-bar
exception, the PCRA court did not abuse its discretion by declining to analyze
it further.
Johnson’s final issue is a claim of PCRA counsel’s ineffectiveness for not
filing an amended PCRA petition, especially given the strength of his Brady
claim. He claims that counsel had no reasonable basis for not doing so and
that his failure to do so conveyed to the PCRA court that Johnson’s claims
lacked merit.
The PCRA court found that Johnson’s underlying Brady claim had no
merit and that Johnson suffered no prejudice from counsel’s alleged failure to
provide effective representation. See PCRA Court Opinion, 5/2/22, at 5.
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We affirm the PCRA court’s decision, although we do so on different
grounds. See Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa.
Super. 2022) (recognizing that an appellate court may affirm a lower court’s
decision on any ground without regard to that the lower court relied upon).
Ineffectiveness of PCRA counsel does not establish a time-bar exception where
it does not wholly deprive a defendant of collateral review. See
Commonwealth v. Stahl, --- A.3d ---, ---, 2023 WL 1793571 at *2 (Pa.
Super. 2023). Additionally, the Supreme Court’s decision in Commonwealth
v. Bradley, 261 A.3d 381 (Pa. 2021), permitting a PCRA defendant to assert
a claim of PCRA counsel’s ineffectiveness for the first time on appeal, does not
establish a time-bar exception that would allow review of a claim of
ineffectiveness of serial PCRA counsel. See generally Stahl, 2023 WL
1793571 at *4 (rejecting the assertion that initial PCRA counsel’s
ineffectiveness can establish the “new fact” exception to the time-bar).5
Accordingly, Johnson fails to establish our jurisdiction to review his
ineffectiveness claim.
Order affirmed.
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5 Even if reviewable, the ineffectiveness claim would fail because counsel
cannot be ineffective for failing to raise a meritless claim, and Johnson has
failed to establish any basis for a time-bar exception. See Commonwealth
v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2023
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