J-S90036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARCUS JOHNSON

Appellant No. 3759 EDA 2015

Appeal from the PCRA Order November 17, 2015

in the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0000576-1999

 CP-23-CR-0006098-1998

 CP-23-CR-0007000-1998

 CP-23-CR-0007001-1998

BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 12, 2016

Appellant Marcus Johnson appeals from the order of the Delaware 

County Court of Common Pleas dismissing as untimely his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. After careful review, we affirm.

This matter stems from armed robberies committed in Upper Darby 

and Yeadon in Delaware County in September and October of 1998. The 

PCRA court outlined the pertinent procedural history as follows:

[Appellant], Marcus Johnson, was convicted of four counts 

of [r]obbery, two counts of [f]irearms [n]ot to be [c]arried 

[w]ithout a [l]icense, and [c]riminal [c]onspiracy to [c]ommit 

[r]obbery. The jury found [Appellant] guilty of robbing one 

Wawa in Upper Darby Township as well as another Wawa in the 

Borough of Yeadon three separate times. All four robberies 

occurred with the assistance of a firearm. On May 2, 2000, 
J-S90036-16

- 2 -

following the trial, he was sentenced to an aggregate prison 

sentence [that] totaled 30 to 70 years.

During the trial, the Commonwealth presented ample 

evidence that left no doubt [Appellant] committed the robberies. 

Video surveillance at both stores produced evidence of the 

perpetrator for each of the robberies. Also, victims of each of 

the robberies positively identified [Appellant] as the perpetrator 

of the robberies both in a photo array and at his preliminary 

hearing. [Appellant] questions most of this evidence and 

testimony in various appeals and [PCRA] motions.

After [Appellant’s] sentence in May of 2000, he filed a 

timely appeal [and complied] with [Pa.R.A.P.] 1925(b). Here, 

[Appellant] argued a new trial should be granted because the 

court admitted a statement [Appellant] made to a police 

detective stating he would alter his physical appearance before 

trial. The Superior Court affirmed [Appellant’s] [j]udgment of 

[s]entence of thirty to seventy years in a [m]emorandum 

[o]pinion on August 29, 2001[,] reasoning that there was no 

error in admitting the statement and, even if there was, it was 

harmless. 

On September 20, 2001, [Appellant] filed his first timely 

post-conviction collateral relief petition. After obtaining 

additional time to obtain and review testimony, defense counsel 

filed a “no merit” letter in accordance with the requirements of 

Pennsylvania v. Finley, 481 U.S. 551 (1987) and 

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

Subsequently, [Appellant] filed an objection to the Finley letter. 

On April 19, 2002, the PCRA court issued a “Notice of Intent to 

Dismiss Post Conviction Relief Act Petition Without Hearing,” and 

gave notice to [Appellant] that he had twenty (20) days to 

respond, or his PCRA petition would be dismissed. Since 

[Appellant] failed to respond to [] PCRA counsel’s notice, on May 

24, 2002[,] the PCRA petition was dismissed.

[Appellant] filed a timely appeal [of] the dismissal of his 

PCRA petition, to which on September 26, 2002[,] the PCRA 

[court] issued an opinion addressing the five issues from 

[Appellant’s] original pro se petition. On October 7, 2002, the 

Superior Court denied [Appellant’s] application for appointment 

of appellate counsel and subsequently affirmed the denial of 

[Appellant’s] PCRA petition in a [m]emorandum [o]pinion on 

June 30, 2003. 
J-S90036-16

- 3 -

As a result of [Appellant’s] federal habeas litigation in 

2006, United States Magistrate Judge Timothy R. Rice issued a 

16-page Report and Recommendation and [the] Honorable 

Stewart J. Dalzell issued a 22-page [o]rder that approved the 

Report and Recommendation. Judge Dalzell acknowledged the 

wealth of evidence the trial court used to convict [Appellant], 

including videotapes of the robberies as well as positive 

identification by the victims before and during trial. 

In October 2009, Kevin Powell, another state inmate, 

approached [Appellant] and supposedly admitted to participating 

in an armed robbery that [Appellant] had been convicted of. Mr. 

Powell authored an affidavit that was mailed to [Appellant’s] 

attorney. Subsequently, [Appellant] filed a PCRA petition based 

on this new evidence. On April 15, 2011, Judge Ann Osborne 

held a PCRA evidentiary hearing where she heard testimony from 

both Mr. Powell and [Appellant]. On December 19, 2011[,] the 

petition was dismissed after the court determined the newly 

discovered evidence would not affect the trial verdict. In fact, 

Judge Osborne noted, “The testimony of both [Appellant] and 

Powell completely lacked credibility.” This decision was 

appealed.

On November 9, 2012, the decision of Judge Osborne was 

affirmed by the Superior Court in a [m]emorandum [o]pinion. 

The Superior Court held that the PCRA petition did not warrant 

relief, despite the acknowledged discrepancies in the initial 

physical descriptions of the perpetrator in one of the robberies 

and [Appellant’s] physical description. In a petition for [f]ederal 

[h]abeas [corpus] relief, [Appellant] also claimed the 

Commonwealth perpetrated a fraud on the court based on a 

comment the prosecutor made during closing arguments 

regarding the amount of evidence used during trial to convict 

[Appellant], including the grainy videotape. On June 17, 2013, 

Federal Judge Dalzell entered an [o]rder, which rejected 

[Appellant’s] assertions of fraud and denied the request for 

habeas relief.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed June 30, 2016, pp. 1-4 (internal 

record citations omitted). 

Appellant filed the instant PCRA petition, his third, on September 19, 

2013. Appellant filed an amended petition on December 12, 2014, and a 
J-S90036-16

- 4 -

motion for discovery on February 2, 2015. On October 13, 2015, the PCRA 

court ordered the Commonwealth to file an answer to the amended PCRA 

petition and motion for discovery within 30 days, which the Commonwealth 

accordingly did on November 16, 2015. On November 17, 2015, the PCRA 

court dismissed the PCRA petition.1 Appellant filed his notice of appeal on 

December 16, 2015. Both Appellant and the trial court complied with 

Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

Did the PCRA [c]ourt err and violate Appellant’s Sixth and 

Fourteenth Amendment rights by finding that his PCRA petition 

was untimely and not subject to one or more of the statutory 

exceptions to the one[-]year jurisdictional time bar [where] this 

incorrect ruling precluded the PCRA [c]ourt from granting 

discovery, conducting an evidentiary hearing and/or addressing 

the merits of the petition[?]

Appellant’s Brief, p. 3. 

Our well-settled standard of review for orders denying PCRA relief is 

“to determine whether the determination of the PCRA court is supported by 

the evidence of record and is free of legal error. The PCRA court’s findings 

will not be disturbed unless there is no support for the findings in the 

____________________________________________

1 The PCRA court dockets do not reflect that the PCRA court filed a 

Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a 

hearing. Although a failure to file a Rule 907 notice may afford an appellant 

relief at times, because Appellant’s petition is untimely as discussed infra, 

we will overlook the PCRA court’s procedural error.
J-S90036-16

- 5 -

certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-192 

(Pa.Super.2013) (internal quotations and citations omitted).

We must first consider the timeliness of the petition, as a petition’s 

timeliness implicates the jurisdiction of both this Court and the PCRA court. 

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal 

denied, 50 A.3d 121 (Pa.2012) (“Pennsylvania law makes clear that no court 

has jurisdiction to hear an untimely PCRA petition”). “It is undisputed that a 

PCRA petition must be filed within one year of the date that the judgment of 

sentence becomes final.” Commonwealth v. Hernandez, 79 A.3d 649, 

651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time requirement is 

mandatory and jurisdictional in nature, and the court may not ignore it in 

order to reach the merits of a petition.” Hernandez, 79 A.3d at 651 (citing 

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). 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 at the expiration of time for seeking the 

review.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition 

may be received where any of the PCRA’s three limited exceptions to the 

time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote 

omitted). These exceptions include:

(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;
J-S90036-16

- 6 -

(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). As our Supreme Court has repeatedly 

stated, the petitioner maintains the burden of pleading and proving that one 

of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d 

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

[a] petition invoking one of these exceptions must be filed within 

sixty days of the date the claim could first have been presented. 

42 Pa.C.S. § 9545(b)(2). In order to be entitled to the 

exceptions to the PCRA’s one-year filing deadline, the petitioner 

must plead and prove specific facts that demonstrate his claim 

was raised within the sixty-day time frame under section 

9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted). Further, in 

the absence of one of the enumerated exceptions, a PCRA court lacks 

authority to extend the PCRA’s filing period. Commonwealth v. Fahy, 737 

A.2d 214, 222 (Pa.1999); see also Commonwealth v. Watts, 23 A.3d 

980, 983 (Pa.2011) (“[To] accord finality to the collateral review process[,]” 

the PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar”).

Finally, a heightened standard applies to a second or subsequent PCRA 

petition to avoid “serial requests for post-conviction relief.” 

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or 
J-S90036-16

- 7 -

subsequent request for relief under the PCRA will not be entertained unless 

the petitioner presents a strong prima facie showing that a miscarriage of 

justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 

1251 (Pa.2006). Additionally, in a second or subsequent post-conviction 

proceeding, “all issues are waived except those which implicate a 

defendant’s innocence or which raise the possibility that the proceedings 

resulting in conviction were so unfair that a miscarriage of justice which no 

civilized society can tolerate occurred”. Commonwealth v. Williams, 660 

A.2d 614, 618 (Pa.Super.1995).

Here, the trial court sentenced Appellant on May 2, 2000. This Court 

affirmed Appellant’s judgment of sentence on August 29, 2001. Appellant 

did not file a petition for allocatur to our Supreme Court. Therefore, his 

judgment of sentence became final on September 28, 2001. See 42 Pa.C.S. 

§ 9545(b)(3). Accordingly, Appellant had until September 30, 20022to 

timely file a PCRA petition.

Appellant filed the instant PCRA petition, his third, on September 19, 

2013, nearly twelve years after his judgment of sentence became final. 

Accordingly, Appellant’s petition is facially untimely. Thus, he must plead 

____________________________________________

2 The one-year anniversary of the finalization of Appellant’s judgment of 

sentence fell on Saturday, September 28, 2002. Accordingly, Appellant had 

until Monday, September 30, 2002 to timely file a PCRA petition. See 1 

Pa.C.S. 1908.
J-S90036-16

- 8 -

and prove that his petition falls under one of the Section 9545 exceptions set 

forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

To overcome the PCRA’s time bar, Appellant argues that new evidence 

exists that entitles him to a time-bar exception pursuant to 42 Pa.C.S. § 

9545(b)(1)(ii). Appellant alleges that the discovery that witness Jackie 

Hayes had spoken with police after the crimes and also with a composite 

sketch artist, and that police had told a second witness, Lakeisha Robinson, 

that they “had their man” before her identification of Appellant, amounted to 

the discovery of new evidence and a Brady violation3 by police that warrants 

PCRA relief. See Appellant’s Brief, pp. 10-25. We do not agree.

This Court has explained the newly discovered evidence 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 newly discovered or newly willing source for previously known 

facts.”

____________________________________________

3 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) 

(holding that a due process violation occurs when the state suppresses or 

fails to disclose material exculpatory evidence).
J-S90036-16

- 9 -

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

citations omitted). Further,

[a]fter-discovered evidence is the basis for a new trial when it: 

1) has been discovered after the trial and could not have been 

obtained at or prior to the conclusion of trial by the exercise of 

reasonable diligence; 2) is not merely corroborative or 

cumulative; 3) will not be used solely for impeaching the 

credibility of a witness; and 4) is of such nature and character 

that a new verdict will likely result if a new trial is granted. 

Further, the proposed new evidence must be producible and 

admissible. 

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa.2011) (internal 

quotations and citations omitted).

Appellant maintains he is entitled to the section 9545(b)(1)(ii) PCRA 

timeliness exception because he filed his PCRA petition within 60 days of 

receiving an investigative report alleging that Hayes gave a statement to 

police and spoke with a sketch artist.4 However, both Hayes and Robinson 

testified at Appellant’s pre-trial hearing and trial, and both were subject to 

cross-examination by Appellant. Appellant’s petition does not explain, as it 

must, why he waited 15 years to contact these witnesses and question them 

____________________________________________

4 Appellant further alleges he filed an amended PCRA petition with 60 days 

of receiving the investigator’s report containing Ms. Robinson’s allegation 

that police told her they had their man prior to her identification of 

Appellant.
J-S90036-16

- 10 -

further.5 Failing to speak with known, available witnesses for 15 years does 

not amount to reasonable diligence on Appellant’s part.6

Further, both witnesses’ allegations would be merely cumulative of 

Appellant’s cross-examination at trial and/or could be used merely to 

impeach the witnesses. 

For these reasons, Appellant’s claims remain time-barred and the trial 

court did not err in dismissing Appellant’s PCRA petition as untimely. 

Accordingly, we affirm the PCRA court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/2016

____________________________________________

5 We note that Appellant prosecuted two other PCRA petitions during the 

intervening period without contacting these witnesses or raising these 

claims.

6

Likewise, while Brady violations may fall within the governmental 

interference exception of section 9545(b)(1)(i), Appellant’s claimed Brady

violations did not occasion his interview of the witnesses and, even if true, 

do not explain his lack of diligence in contacting these witnesses.