J-S35001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RODNEY JERMAINE JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 938 MDA 2021

Appeal from the Order Entered July 16, 2021

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0006484-2008

BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY OLSON, J.: FILED: DECEMBER 20, 2021

Appellant, Rodney Jermaine Johnson, appeals pro se from the order 

entered on July 16, 2021, denying his ninth, pro se petition filed pursuant to 

the Post Conviction Relief Act1 (PCRA) as untimely. We affirm.

We have previously set forth the facts of this case as follows:

In the early morning hours of August 10, 2008, [Appellant]

went to the home of his estranged wife, the victim, and 

initiated a harrowing physical and sexual assault upon her, 

while their three children were in the house, that lasted 

several hours through the night and into the next morning. 

At the time, an active protection from abuse (“PFA”) order 

had been in place to protect the victim from [Appellant]. 

[Appellant] informed the victim that if she did not do what 

he wanted, that he would hurt her and their children, asleep 

upstairs.

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* Retired Senior Judge assigned to the Superior Court.

1

 42 Pa.C.S.A. §§ 9541-9546.
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After several incidents of sexual abuse in the living room of 

her home, [Appellant] forced the victim into the basement 

where he again forced himself on her, yelling at her, and 

punching her about the head. At some point, [Appellant] 

attempted to stab the victim in the chest, but she was able 

to move and the blade went into her left shoulder. Another 

sexual assault followed the stabbing, and only after the 

victim was able to find her ACCESS 911–cellphone and 

charge its dead battery, was she finally able to contact 

police and end her ordeal; the police arrived at the residence 

around 10:00 a.m. When the police arrived, they had to 

make a forcible entry into the home because [Appellant] 

refused to allow them to enter; the victim was so desperate 

to get her children away from [Appellant] that she handed 

them out the window to the police, to safety. The police took 

[Appellant] into custody.

Commonwealth v. Johnson, 79 MDA 2014, at *1 (Pa. Super. 

Sept. 25, 2014) (quoting the trial court opinion). A jury found 

[Appellant] guilty of two counts of rape, two counts of involuntary 

deviate sexual intercourse, aggravated assault, aggravated 

indecent assault, and simple assault. [Appellant] was sentenced 

to 28 to 56 years’ incarceration, and this [C]ourt affirmed the 

judgment of sentence. Our Supreme Court denied [Appellant’s] 

petition for allowance of appeal on March 1, 2011. 

Commonwealth v. Johnson, 13 A.3d 991 (Pa. Super. 2010), 

appeal denied, 17 A.3d 1252 (Pa. 2011) (unpublished 

memorandum). [Appellant] filed numerous PCRA petitions 

between 2012 through 20[20], none of which merited relief. Id.

Commonwealth v. Johnson, 2020 WL 1490941, at *1 (Pa. Super. 2020) 

(unpublished memorandum) (original brackets and footnote omitted).

Most recently, Appellant filed a pro se PCRA petition, his ninth, on 

February 12, 2021. The PCRA court appointed counsel to represent Appellant. 

On April 26, 2021, by separate orders, the PCRA court granted PCRA counsel 

leave to withdraw and issued notice of its intent to dismiss Appellant’s PCRA 

petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a 
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timely response to the PCRA court’s Rule 907 notice. On July 15, 2021, 

Appellant filed a notice of appeal. The PCRA court entered an order the same 

day asking this Court to quash the appeal as premature, because the PCRA 

court had not entered a final order dismissing the PCRA petition. On July 16, 

2021, however, the PCRA court entered an order and opinion dismissing the 

PCRA petition. By order entered on July 23, 2021, this Court concluded that 

the PCRA court entered a final order after Appellant filed his notice of appeal 

and, thus, the appeal should proceed. See Pa.R.A.P. 905(a)(5) (“A notice of 

appeal filed after the announcement of a determination but before the entry 

of an appealable order shall be treated as filed after such entry and on the 

day thereof.”). As such, this timely appeal resulted.2

Our standard of review of an order dismissing a PCRA petition is limited 

to examining whether the PCRA court's rulings are supported by the evidence 

of record and free of legal error. Commonwealth v. Brandon, 51 A.3d 231, 

233 (Pa. Super. 2012). The PCRA requires that any PCRA petition be filed 

within one year of the date that the petitioner's judgment of sentence becomes 

final. See 42 Pa.C.S.A. § 9545(b)(1). “This one-year limitation is 

jurisdictional and therefore, courts are prohibited from considering an 

untimely PCRA petition.” Commonwealth v. Lopez, 249 A.3d 993, 999 (Pa. 

2021) (citations omitted). Because Appellant’s judgment of sentence became 

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2 Appellant filed a timely concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). The PCRA court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on August 3, 2021, relying upon its earlier decision filed on 

July 16, 2021.
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final in 2011, his ninth PCRA petition is untimely on its face. “To establish 

the PCRA court's jurisdiction, [Appellant] must therefore plead and prove the 

applicability of [one of three] exception[s] to the PCRA's time bar.” Id. citing

42 Pa.C.S.A. § 9545(b)(1)(i)–(iii) (governmental interference, 

newly-discovered evidence, and/or newly recognized constitutional right). 

Here, Appellant does not plead or prove an exception to the one-year 

jurisdictional time bar. Therefore, we conclude that the PCRA court properly 

dismissed Appellant’s PCRA petition for lack of jurisdiction, not subject to 

exception.

Moreover, currently on appeal to this Court, Appellant asserts that the 

jury’s verdict was against the sufficiency and weight of the evidence presented 

at trial because of the results of DNA testing. However, in the underlying pro 

se PCRA petition, Appellant alleged that “his 4th Amendment rights were 

violated under the United States Constitution when police searched his home 

without a search warrant, and [] trial counsel fail[ed] to challenge the 

evidence obtained from the search of his home.” PCRA Court Opinion, 

7/16/2021, at 11. An appellant waives issues on appeal that he did not raise 

in the PCRA petition. See Commonwealth v. Lauro, 819 A.2d 100, 103-

104 (Pa. Super. 2003) (waiving five issues not in original or amended PCRA 

petition). Further, an appellant cannot raise a subject for the first time on 

appeal. See Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3 (Pa. 

Super. 2007) (new legal theories cannot be raised for first time on appeal); 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot 
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be raised for the first time on appeal.”). As such, Appellant has waived the 

issues he currently raises on appeal.

Finally, to the extent that Appellant currently argues that DNA results 

were contrary to the verdict, we previously concluded:

[Appellant] fil[ed] an “Agreement to Conduct Motion for Post 

Conviction (DNA) Testing Pursuant to 42 Pa.C.S.A.

§ 9543.1(B)(1)” [with the PCRA court] on December 14, 2018. He 

filed an identical document on April 2, 2019. [Appellant] 

requested DNA testing of certain evidentiary samples that were 

collected prior to his trial. The samples were listed in a four-page 

laboratory report that had been admitted into evidence at his trial. 

The report confirmed that [Appellant’s] DNA was a major 

contributor to a semen sample recovered from the victim’s rape 

kit. However, the report noted that additional samples taken 

from the victim were not tested for DNA, and [Appellant] argue[d]

that testing of these samples would establish his actual innocence.

He also sought DNA testing of knives that were recovered from 

the crime scene, as the testing only confirmed that the samples 

collected from the knives were not blood.

Johnson, 2020 WL 1490941 at *1 (footnotes omitted).

This Court previously determined that Appellant waived his claim for 

post-conviction DNA testing, but found the issue without merit for the 

following reasons:

A petitioner may seek post-conviction DNA testing if, inter alia, he 

sets forth a prima facie case that the “identity of or the 

participation in the crime by the perpetrator was at issue in the 

proceedings that resulted in the applicant’s conviction and 

sentencing.” 42 Pa.C.S.A. § 9543.1(c)(3)(i). The identity of the 

perpetrator was not a key factual issue in this case. The victim 

was [Appellant’s] wife; she immediately identified him as the 

perpetrator of the hours-long assault, he was arrested at the 

scene of the assault immediately after it occurred, and the DNA 

test of the semen sample from the rape kit confirmed that 

[Appellant] was a major contributor. This is not a case in which 

DNA testing would be relevant to identify an unknown assailant or 
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rule [Appellant] out as the perpetrator. Even if [Appellant’s] DNA 

is not recovered from the additional untested samples, this would 

not prove his actual innocence under the totality of the evidence 

in this case. See Commonwealth v. Heilman, 867 A.2d 542, 

546-547 (Pa. Super. 2005) (“In DNA as in other areas, an absence 

of evidence is not evidence of absence.”). Under these 

circumstances, [Appellant] has set forth no plausible claim that 

further DNA testing would establish that he was not the 

perpetrator of the crime, and the trial court did not err in denying 

his motion.

Id. at *2. For all of the foregoing reasons, Appellant is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/20/2021