J-S61008-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELWOOD JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1330 EDA 2019

Appeal from the PCRA Order Entered April 17, 2019

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0009065-2006

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2019

Elwood Johnson appeals from the April 17, 2019 order dismissing his 

eighth petition for collateral relief under the Post-Conviction Relief Act 

(“PCRA”) as untimely. We affirm.

This Court previously provided an apt summary of the factual and 

procedural background of this case:

In September 2006, the authorities began investigating 

Appellant’s involvement in a drug trafficking organization led by 

Jose Cabrera. A confidential informant (“Informant 1”) told the 

authorities Appellant possessed and sold cocaine. The authorities 

subsequently used Informant 1 to conduct three controlled 

purchases of narcotics from Appellant. During each transaction, 

Appellant utilized the same black Honda. Through surveillance, 

the police confirmed Appellant would often travel in his vehicle to 

his mother’s residence at 1317 Locust Street in Norristown. In 

October 2006, a second confidential informant (“Informant 2”) 

told police Appellant stored illegal drugs at 1317 Locust Street.

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* Former Justice specially assigned to the Superior Court.
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The authorities subsequently obtained court orders to intercept 

the telephone conversations of Appellant, Mr. Cabrera, Abraham 

Martinez, and other members of [Mr. Cabrera’s] organization. The 

intercepted telephone conversations revealed Appellant had 

purchased cocaine from Mr. Cabrera on October 12, 2006. 

Conversations between Appellant and Mr. Cabrera confirmed 

Appellant was selling this cocaine, and Appellant anticipated 

purchasing additional cocaine from Mr. Cabrera. On October 25, 

2006, the authorities executed a search warrant at 1317 Locust 

Street, recovering 248.41 grams of cocaine. That same day, 

authorities raided other properties associated with the Cabrera 

organization. The authorities also arrested Mr. Cabrera and Mr. 

Martinez, both of whom later agreed to testify against Appellant 

at trial.

. . . .

Following trial, a jury found Appellant guilty of two counts each of 

possession of a controlled substance, corrupt organizations, and 

criminal use of communication facility, and one count each of 

[possession of a controlled substance with intent to deliver 

(“PWID”)], conspiracy, and dealing in proceeds of unlawful 

activities. On February 5, 2009, the [trial] court sentenced 

Appellant to an aggregate term of sixteen and one-half (161⁄2) to 

thirty-three (33) years’ imprisonment. . . .

Commonwealth v. Johnson, 11 A.3d 1014 (Pa.Super. 2010) (unpublished 

memorandum at 1-3). 

Appellant filed a direct appeal challenging the sufficiency and weight of 

evidence presented by the Commonwealth, and the discretionary aspects of 

his sentence. On August 6, 2010, a panel of this Court affirmed Appellant’s 

judgment of sentence. Id. Appellant submitted a petition for allowance of 

appeal to the Pennsylvania Supreme Court, which denied it on March 9, 2011. 

See Commonwealth v. Johnson, 20 A.3d 485 (Pa. 2011).
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On April 29, 2011, Appellant timely filed his first, pro se PCRA petition. 

Counsel was appointed to represent Appellant, who found no meritorious 

issues and sought to withdraw pursuant to the framework established under 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth 

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The PCRA court 

dismissed Appellant’s first petition consistent with counsel’s averments. 

However, while Appellant was represented, the PCRA court accepted and 

responded to a number of pro se filings from Appellant that raised various 

allegations without the assistance of counsel. Appellant appealed to this 

Court. While that appellate review was still pending, Appellant filed a second 

PCRA petition that was dismissed as duplicative.1 Thereafter, this Court 

concluded that the PCRA court’s acceptance and engagement with Appellant’s 

pro se filings constituted “significant procedural error,” vacated the dismissal 

of Appellant’s first PCRA petition, and remanded to the PCRA court. See 

Commonwealth v. Johnson, 64 A.3d 25 (Pa.Super. 2012) (unpublished 

memorandum). Immediately after remand, Appellant filed a third PCRA 

petition that was also dismissed as duplicative. On May 31, 2013, the PCRA 

court dismissed Appellant’s first PCRA petition again. Appellant did not appeal.

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1

 See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (“[W]hen an 

appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition 

cannot be filed until the resolution of review of the pending PCRA petition by 

the highest state court in which review is sought, or upon expiration of the 

time for seeking such review.”).
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Between July 18, 2013, and February 1, 2017, Appellant filed four more 

PCRA petitions, which were all dismissed by the PCRA court as lacking merit 

and/or failing to abide by the timeliness requirements attendant to the PCRA 

pursuant to 42 Pa.C.S. § 9545(b). The dismissals were uniformly affirmed by 

this Court in unpublished memorandums. See, e.g., Commonwealth v. 

Johnson, 108 A.3d 120 (Pa.Super. 2014) (unpublished memorandum); 

Commonwealth v. Johnson, 159 A.3d 39 (Pa.Super. 2016) (unpublished 

memorandum); Commonwealth v. Johnson, 183 A.3d 1049 (Pa.Super. 

2018) (unpublished memorandum).

The instant PCRA petition, Appellant’s eighth such submission, was filed 

on February 5, 2019. On April 17, 2019, the PCRA court dismissed Appellant’s 

serial petition as untimely under the PCRA. On May 2, 2019, Appellant 

predictably appealed to this Court. On the same day, Appellant filed a concise 

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

despite the lack of an order from the PCRA court directing him to do so. On 

July 17, 2019, the PCRA court filed an opinion explaining its rationale behind 

dismissing Appellant’s eighth PCRA petition.

In pertinent part, Appellant claims in his brief to this Court that he never 

received a copy of the arrest warrant in his case, and allegedly learned for the 

first time in December 2018 that there is not an arrest warrant present in the 

certified record. In relevant part, Appellant avers that this is the result of 

governmental interference. See Appellant’s brief at 7 (“[T]he prosecution not 

only suppressed the fact that an arrest warrant for Appellant[’]s arrest was 
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not issued, they covered it up by sending Appellant docket transcripts stating 

that there was an arrest warrant issued for Appellant . . . on October 30, 2006, 

which they [cannot] . . . produce . . . .”). 

Our standard and scope of review in this context is well-articulated 

under existing Pennsylvania precedent: “On appeal from the denial of PCRA 

relief, our standard and scope of review is limited to determining whether the 

PCRA court’s findings are supported by the record and without legal error.” 

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view 

the evidence of record in the light most favorable to the prevailing party at 

the PCRA court level. See Commonwealth v. Koehler, 36 A.3d 121, 131 

(Pa. 2012). However, we apply a de novo standard of review with specific 

regard to the PCRA court’s legal conclusions. Commonwealth v. Spotz, 18 

A.3d 244, 259 (Pa. 2011).

Before we may address the underlying merits of Appellant’s eighth PCRA 

petition, we must assess whether the petition is timely, or subject to one of 

the exceptions to the timeliness requirements under the PCRA. See 

Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he 

PCRA’s timeliness requirements are jurisdictional in nature and must be 

strictly construed; courts may not address the merits of the issues raised in a 

petition if it is not timely filed.”). 

In pertinent part, the PCRA provides as following regarding timeliness:

(b) Time for filing petition.—
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(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 

Sates; 

(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; . . . .

. . . .

(3) For purposes of this subchapter, 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.

42 Pa.C.S. § 9545(b). In reviewing these statutory provisions, it is also 

important to note that “there is no generalized equitable exception to the 

jurisdictional one-year time bar pertaining to post-conviction petitions.” 

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

Instantly, direct review of Appellant’s judgment of sentence concluded 

on March 9, 2011, when our Supreme Court denied Appellant’s petition for 

allowance of appeal. See Commonwealth v. Johnson, 20 A.3d 485 (Pa. 

Mar. 9, 2011). Therefore, Appellant’s judgment of sentence became final for 

the purposes of PCRA timeliness on June 7, 2011, or ninety days after the 

time for Appellant to file a writ of certiorari in the U.S. Supreme Court had 

expired. See 42 Pa.C.S. § 9545(b)(3); see also U.S. Sup. Ct. R. 13. Thus, 
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Appellant had until June 7, 2012, to file a facially timely PCRA. See 42 Pa.C.S. 

§ 9545(b)(1). Consequently, Appellant’s eighth PCRA petition is untimely by 

more than seven years. 

Appellant claims that the exceptions at 42 Pa.C.S. §§ 9545(b)(1)(i)-(ii) 

respecting government interference and newly discovered facts should apply 

in this case. We will begin by addressing the governmental interference 

exception, which the Commonwealth contends that Appellant has waived 

under Pa.R.A.P. 1925(b)(4)(vii). 

Although Appellant was not directed to file a Rule 1925(b) concise 

statement by the PCRA court, his decision to gratuitously file one on his own 

initiative entails the same waiver analysis under Pa.R.A.P. 1925(b)(4)(vii). 

See Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa.Super. 2005) (“If 

we were to find that because he was not ordered to file a [Rule] 1925(b) 

statement, he has not waived the issues he neglected to raise in it, we would, 

in effect, be allowing appellant to circumvent the requirements of the Rule.”). 

The Commonwealth asserts that Appellant has waived any arguments 

concerning the governmental interference exception to timeliness under the 

PCRA. See 42 Pa.C.S. § 9545(b)(i). We agree. Appellant’s concise statement 

clearly limits his arguments to the PCRA timeliness exception at § 9545(b)(ii), 

and there is no mention of the exception concerning governmental 

interference. As such, this issue has been waived. See Commonwealth v. 
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Hill, 16 A.3d 484, 494 (Pa. 2011) (“[A]ny issues not raised in a Rule 1925(b) 

statement will be deemed waived; . . . .”).

We will turn to Appellant’s arguments concerning the newly discovered 

material facts exception. In order to successfully invoke this exception to 

timeliness under the PCRA, Appellant must plead and prove that: “(1) the 

facts upon which the claim [is] predicated` were unknown and (2) could not 

have been ascertained by the exercise of due diligence.” Commonwealth 

v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (emphasis in original). Due 

diligence “requires reasonable efforts by a petitioner, based on the particular 

circumstances, to uncover facts that may support a claim or collateral relief,” 

but does not call for “perfect vigilance [or] punctilious care.” Id.

Appellant’s invocation of this exception relates to the alleged absence of 

an arrest warrant in the certified record. Appellant claims that he was 

unaware of this “missing” document until he directed a family member to 

obtain a copy of the filing from the Montgomery County Clerk of Courts.2 See

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2 Even assuming, arguendo, that no arrest warrant was ever issued for 

Appellant, it appears that the Commonwealth fully complied with the 

requirements of Pa.R.Crim.P. 519(A)(1) (“[W]hen a defendant has been 

arrested without a warrant in a court case, a complaint shall be filed against 

the defendant and the defendant shall be afforded a preliminary arraignment 

by the proper issuing authority without unnecessary delay.”). A criminal 

complaint was filed against Appellant on November 24, 2006. On the same 

day, Appellant voluntarily appeared for a preliminary arraignment. Although 

we do not reach the merits of Appellant’s arguments, it is entirely unclear 

what the gravamen of Appellant’s actual claim for relief may be as it relates 

to the “missing” arrest warrant. 
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Appellant’s brief at 11. As an initial matter, Appellant’s claim that he did not 

realize that there was no arrest warrant in his case for the better part of a 

decade beggars belief. Even assuming, arguendo, that this information 

constituted “new” facts that were unknown to Appellant, he has failed to plead 

due diligence. See Commonwealth v. Brown, 111 A.3d 171, 176 

(Pa.Super. 2015) (holding that PCRA due diligence requirement must be 

strictly enforced). In relevant part, Appellant’s only argument along these 

lines is a general averment in his PCRA petition that he was not under an 

obligation to act with due diligence because he was allegedly told by a member 

of law enforcement that an arrest warrant had been issued in the case. 

However, Appellant has not offered any rational explanation regarding why he 

could not have determined the absence of the arrest warrant in the intervening 

eight years. As such, Appellant has not established that he acted with due 

diligence. See Commonwealth v. Smith, 194 A.3d 126, 135 (Pa.Super. 

2018) (holding that defendant did not satisfy due diligence requirement by 

offering no reasonable explanation for a 13-year delay in obtaining new 

evidence). Therefore, § 9545(b)(1)(ii) is inapplicable.

Overall, we conclude that Appellant has failed to satisfy the timeliness 

exceptions to the PCRA. As such, we affirm the trial court’s dismissal of 

Appellant’s eighth PCRA petition as untimely.

Order affirmed
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/19