J-S46032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

REGINALD JOHNSON, :

:

Appellant : No. 1585 EDA 2014

Appeal from the PCRA Order entered on April 17, 2014

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No. CP-51-CR-0909861-1996

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 16, 2015

Reginald Johnson (“Johnson”) appeals from the Order dismissing his 

third Petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”).1 We affirm.

In September 1996, Johnson and an accomplice robbed three 

individuals at gunpoint outside of a nightclub. A jury subsequently convicted 

Johnson of three counts of robbery, and one count each of criminal 

conspiracy and possession of an instrument of crime. On November 20, 

1997, the trial court imposed an aggregate sentence of 371⁄2 to 75 years in 

prison. Following a procedural history that is not relevant to the instant 

appeal, this Court affirmed Johnson’s judgment of sentence. See 

Commonwealth v. Johnson, 776 A.2d 292 (Pa. Super. 2001) (unpublished 

 

1 See 42 Pa.C.S.A. §§ 9541-9546.
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memorandum). Johnson did not file a Petition for allowance of appeal with 

the Pennsylvania Supreme Court. 

In the following years, Johnson filed two PCRA Petitions, both of which 

were dismissed, and this Court affirmed each dismissal. See 

Commonwealth v. Johnson, 847 A.2d 757 (Pa. Super. 2004) (unpublished 

memorandum), appeal denied, 858 A.2d 109 (Pa. 2004); Commonwealth 

v. Johnson, 986 A.2d 1257 (Pa. Super. 2009) (unpublished memorandum), 

appeal denied, 990 A.2d 778 (Pa. 2010). 

On September 14, 2012, Johnson, represented by counsel, filed the 

instant PCRA Petition. Subsequently, the PCRA court gave Johnson Notice, 

pursuant to Pa.R.Crim.P. 907, of its intention to dismiss his PCRA Petition 

without a hearing, concluding that the Petition was not timely filed, and 

Johnson had failed to plead or prove any of the three exceptions to the 

PCRA’s one-year jurisdictional time-bar (collectively “the timeliness 

exceptions”). Johnson filed a Response to the Rule 907 Notice, and later, a 

timely Notice of Appeal. The PCRA court ordered Johnson to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Johnson 

timely filed a Concise Statement, after which the PCRA court issued a 

Pa.R.A.P. 1925(a) Opinion.

On appeal, Johnson presents the following questions for our review:

I. Whether the PCRA Petition was time barred where, as here, 

the delay in filing was attributable to the [trial] court’s 

administrative/judicial staff[,] who misplaced the transcripts 

necessary to develop the facts and issues presented in the PCRA 

Petition?
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II. Whether the PCRA is facially unconstitutional as applied to 

the facts and circumstances of [Johnson’s] case?

Brief for Appellant at 2 (capitalization and quotation marks omitted).

We begin by noting our well-settled standard of review: “In reviewing 

the [dismissal] of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation 

omitted).

Under the PCRA, a defendant must file any PCRA petition within one 

year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. 

§ 9545(b)(1); see also id. § 9545(b)(3) (providing that a judgment of

sentence 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 the expiration of time for seeking 

review.”). 

Here, Johnson’s judgment of sentence became final in February 2001,

after the period to file an appeal with the Pennsylvania Supreme Court 

expired. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 1113(a). 

Johnson did not file the instant PCRA Petition until September 2012. The 

Petition is therefore facially untimely, as it was filed over eleven years after 

Johnson’s judgment of sentence became final.

However, Pennsylvania courts may consider an untimely PCRA petition 

if the appellant can explicitly plead and prove one of the timeliness 
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exceptions: (i) the failure to raise the claim was the result of government 

interference; (ii) the facts of the new claim were unknown to the petitioner 

and could not have been discovered with due diligence; or (iii) the right 

asserted is a constitutional right recognized by the United States Supreme 

Court or the Pennsylvania Supreme Court after the time period provided in 

the section and has been held to apply retroactively. 42 Pa.C.S.A. 

§ 9545(b)(1)(i-iii). Any PCRA petition invoking one of the timeliness 

exceptions must be filed within sixty days of the date the claim could have 

been presented. Id. § 9545(b)(2).

Johnson argues in his first issue that he has met the requirements of 

all three of the timeliness exceptions. See Brief for Appellant at 12-16. 

Initially, we observe that the PCRA court concluded that it lacked 

jurisdiction to address any of Johnson’s claims, since none of the issues 

Johnson raised in his Rule 1925(b) Concise Statement addressed any of the 

timeliness exceptions. See PCRA Court Opinion, 1/6/15, at 5. Indeed, the 

Concise Statement, which is ten pages long, and in narrative form, only 

superficially invokes two of the timeliness exceptions, in a footnote. See

Concise Statement, 6/9/14, at 8 n.6 (stating that “Johnson raised the claim 

in the PCRA [Petition] that the transcript of the jury selection [(hereinafter 

‘the Transcript’),] which contains the evidence of the [trial court] judge 

impermissibly involving himself in the plea negotiations[,] was placed, in 

error, in the file of a co-defendant[,] and that [Johnson] was entitled to 
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application of [sections] 9545(b)(1)(i) ...[,] and 9545(b)(1)(ii)[.]”).2 

Though we could find Johnson’s claim waived on this basis,3 we will briefly 

address the two timeliness exceptions he invoked in the footnote of his 

Concise Statement.

Johnson argues that his PCRA Petition is not time barred under the 

governmental interference and newly discovered facts exceptions. See Brief 

for Appellant at 11-14. Specifically, Johnson asserts that court officials 

misplaced the Transcript, which reveals that the trial judge allegedly 

threatened him with a more severe punishment if he proceeded to trial as

 

2 Otherwise, the issues in Johnson’s voluminous Concise Statement concern 

claims of ineffectiveness of counsel and actual innocence.

3 See Pa.R.A.P. 1925(b)(4)(ii) & (vii) (providing, respectively, that “[t]he 

Statement shall concisely identify each ruling or error that the appellant 

intends to challenge with sufficient detail to identify all pertinent issues for 

the judge[,]” and that “[i]ssues not included in the Statement and/or not 

raised in accordance with the provisions of this paragraph [] are waived.”).
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opposed to taking a plea bargain.4 Id.; see also id. at 12 (wherein Johnson 

claims that the conviction and sentence was unlawful, and that “the trial 

court [judge] impermissibly involved himself in and tainted the plea 

bargaining process.”). Johnson contends that he exercised due diligence in 

raising this claim, as the Transcript was misplaced in another person’s file, 

and he discovered it within sixty days of the date that he filed the instant 

PCRA Petition.5 Id. at 13, 14.

Johnson’s bald allegation that courtroom officials misplaced the 

Transcript is not sufficient to meet the governmental interference exception. 

See Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008) (stating 

that the appellant did not satisfy the governmental interference exception 

where he presented general, unsupported allegations and offered no 

 

4

Johnson specifically challenges the trial court’s following remark made 

immediately prior to the empaneling of the jury:

THE COURT: And have you[, defense counsel,] explained to your 

client that if convicted[,] I would have no qualms about sentencing 

them[, i.e., Johnson and his co-defendant,] to sixty to one hundred 

and twenty years in prison. I’ve done it in the past, and I’ll do it 

today, tomorrow, the next day, or any other day. So, you know, if 

your clients are looking for mercy, now is the time to get it. If they 

want justice, I will bring that jury in the room in just one half of a 

second. So they have to make up their mind now. You want mercy, 

something less than sixty to a hundred twenty years, now is the time 

to ask for it. If you’re looking for justice, I will bring that jury right in 

the room right this minute. What do you wish to do?

N.T., 9/17/97, at 1-2.

5

Johnson has not advanced any support concerning his allegation that he 

filed his PCRA Petition within sixty days of the Transcript being made 

available to him. See 42 Pa.C.S.A. § 9545(b)(2). Nevertheless, we will 

address the merits of Johnson’s claim.
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evidence that the Commonwealth interfered with his claims). Johnson has 

not advanced any evidence that this omission, in fact, occurred, nor has he 

established that it constituted a violation of the law. See 42 Pa.C.S.A. 

§ 9545(b)(1)(i) (providing that governmental interference must constitute a 

“violation of the Constitution or laws of this Commonwealth or the 

Constitution or laws of the United States.”). Moreover, Johnson was 

previously aware of the trial court judge’s above-mentioned remark, since 

Johnson was in the courtroom at the time it was made. See 

Commonwealth v. Burton, 936 A.2d 521, 526-27 (Pa. Super. 2007) 

(where the PCRA petitioner invoked the governmental interference exception 

based upon a letter sent to the prosecutor fifteen years prior to the filing of 

the PCRA petition, alleging that this letter was improperly withheld from him, 

holding that the petitioner’s claim did not meet the exception, since the 

existence of the letter was fully discernable to the petitioner fifteen years 

prior). 

Regarding Johnson’s claim concerning the newly discovered facts 

exception, this Court has described the requirements of the exception as 

follows:

The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned 

those facts earlier by the exercise of due diligence. Due 

diligence demands that the petitioner take reasonable steps to 

protect his own interests. A petitioner must explain why he 

could not have learned the new fact(s) earlier with the exercise 

of due diligence. This rule is strictly enforced. Additionally, the 

focus of this exception is on the newly discovered facts, not on a 
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newly discovered or newly willing source for previously known 

facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations 

and quotation marks omitted). Here, as mentioned above, Johnson was 

aware of the trial court judge’s above-mentioned remark well in advance of 

Johnson’s allegedly recent “discovery” of the Transcript. The Transcript 

merely reflected what happened in court, in Johnson’s presence, and is not a 

newly discovered fact; rather it is a new source for information previously 

known to Johnson. See id. Finally, Johnson fails to provide a valid 

explanation as to why he could not have obtained the Transcript earlier with 

due diligence. See id.; see also Burton, 936 A.2d at 526. Accordingly, 

Johnson has failed to meet the requirements of the newly discovered facts

exception. 

Accordingly, Johnson’s first issue does not entitle him to relief. The 

PCRA court properly determined that Johnson’s PCRA Petition is untimely 

and that he had not established any of the timeliness exceptions.6 

Next, Johnson argues that the PCRA is unconstitutional on its face, and 

as applied to the circumstances of his case. See Brief for Appellant at 16-

 

6 To the extent that Johnson raised claims of ineffective assistance of 

counsel, “it is well established that the fact that a petitioner’s claims are 

couched in terms of ineffectiveness will not save an otherwise untimely 

petition from the application of the time restrictions of the PCRA.” 

Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (citation 

omitted).
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18. Citing the Statutory Construction Act (“SCA”),7 he contends that 

“[a]pplication of the PCRA’s time bar to defeat claims of constitutional 

violations would make the PCRA unconstitutional as applied where, as here, 

the delayed filing is attributable to negligence of the [c]ourt’s staff.” Id. at 

18; see also id. (arguing that “[t]he General Assembly obviously did not 

consider the possibility that delays would be caused by misplaced files ....”).

Johnson has waived this claim, since he did not raise it in either his 

PCRA Petition or his Concise Statement. See Commonwealth v. 

Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that “[a]ny claim not 

raised in the PCRA petition is waived and not cognizable on appeal.”); see 

also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that 

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”).8

We conclude that the record supports the PCRA court’s dismissal of 

Johnson’s third PCRA Petition as being untimely, and discern no error of law.

Order affirmed.

 

7 See 1 Pa.C.S.A. § 1501 et seq. Johnson particularly relies upon 1 

Pa.C.S.A. § 1922(1), which provides that “the General Assembly does not 

intend a result that is absurd, impossible of execution or unreasonable.”

8 Even if we did not find waiver, there is no merit to Johnson’s claim that the 

PCRA violates the SCA and is unconstitutional. It is well established that 

“the time restrictions for filing PCRA petitions are constitutional[.]” 

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); Commonwealth 

v. Peterkin, 722 A.2d 638, 643 (Pa. 1998) (same); see also 

Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (stating that 

“[a]s we have explained, the nature of the constitutional violations alleged 

has no effect on the application of the PCRA time bar. ... Rather, the only 

cognizable exceptions are set forth at Section 9545(b)(1).” (internal citations 

omitted)).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2015