J-S09020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LANDO L. LYNCH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 319 WDA 2022

Appeal from the PCRA Order Entered February 22, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0004697-2002, 

CP-02-CR-0005402-2002

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED: APRIL 25, 2023

Lando L. Lynch appeals from the order that dismissed his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”).

1

 We affirm.

Appellant is serving a sentence of life imprisonment for first-degree 

murder and other crimes. This Court summarized the facts underlying 

Appellant’s convictions as follows:

On the evening of March 16, 2002, Officer James Payne of 

the City of Pittsburgh Housing Authority Police Department was 

____________________________________________

1 Although the appealed-from order included both of the above-captioned 

docket numbers, Appellant filed only one notice of appeal, which violates our 

Supreme Court’s holding in Commonwealth v. Walker, 185 A.3d 969 (Pa. 

2018) (mandating separate notices of appeal for each lower court docket 

number). However, as the PCRA court incorrectly advised Appellant that he 

could seek review of its ruling by filing “a Notice of Appeal,” see Order, 

2/22/22, at ¶ 3(a), we may proceed to adjudicate the matters raised herein 

rather than address Appellant’s Walker violation. See, e.g., 

Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa.Super. 2020) (en banc). 
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dispatched to respond to a report of a shooting at the Whiteside 

Road housing complex in the Hill District section of Pittsburgh. 

Upon arrival at the scene, Officer Payne discovered the victim, 16-

year-old D.J., clutching the side of his stomach near the back door 

of 892 Whiteside Road. The victim subsequently died later that 

evening.

That same evening, Pittsburgh homicide detective Timothy 

Nutter spoke with Tracy Johnson, who lived on the second floor of 

the building located at 805 Whiteside Road. Johnson informed 

Detective Nutter that while she did not directly observe the 

shooting, she heard three or four gunshots and a female scream, 

after which she called 911.1 Detective Nutter also interviewed 

Darcell Boyd, a friend and former classmate of the victim, who 

had seen the victim talking with Appellant on the night of the 

murder. According to Boyd, he observed the victim and Appellant 

engaging in a conversation in the courtyard of the housing 

complex, during which, Appellant accused the victim of stealing 

his tennis shoes. Thereafter, Boyd stated that Appellant then held 

a “rusty brown .32 gun” in his right hand, pointed it at the victim’s 

stomach from a distance of no more than three or four feet away, 

and shot him.

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1 We note that at trial, Tracy Johnson testified that she 

actually witnessed Appellant shoot the victim. Johnson 

claimed that she was initially afraid to report this to police 

because Appellant’s brother had previously threatened her 

with a firearm and accused her of “snitching” on him to 

police for selling drugs.

Subsequent thereto, Appellant was charged with one count 

of criminal homicide, with a violation of the Uniform Firearms Act 

(“VUFA”) for carrying a firearm without a license, and with one 

count of possessing an instrument of crime. Following a jury trial, 

Appellant was convicted of [all] counts.

Commonwealth v. Lynch (“Lynch II”), 62 A.3d 465 (Pa.Super. 2012) 

(unpublished memorandum at 1-2) (cleaned up).

Appellant’s direct appeal yielded no relief. In particular, this Court held 

that the Commonwealth’s failure to timely disclose that it had conducted an 
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interview with Ms. Johnson the week before trial did not warrant a mistrial 

because, inter alia, trial counsel “effectively impeached [Ms.] Johnson 

regarding the inconsistencies, conflicts, and omissions between her past 

statements and trial testimony during cross examination.” Commonwealth 

v. Lynch (“Lynch I”), 898 A.2d 1130 (Pa.Super. 2006) (unpublished 

memorandum at 7), appeal denied, 909 A.2d 303 (Pa. 2006). 

Appellant’s first, timely PCRA petition also resulted in no relief. In 

addition to affirming the denial of claims related to witnesses whom trial 

counsel had not called, we agreed with the PCRA court that Appellant’s claim 

that the Commonwealth committed a violation of Brady v. Maryland, 373 

U.S. 83 (1963), by failing to disclose its pretrial interview with Ms. Johnson 

was previously litigated. See Lynch II, supra (unpublished memorandum 

at 12), appeal denied, 70 A.3d 810 (Pa. 2013). 

Appellant filed a second PCRA petition in 2016, claiming that his 

sentence was unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460 

(2012) (holding unconstitutional mandatory minimum sentences of life 

imprisonment without possibility of parole imposed upon juvenile murderers), 

and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that Miller

applied retroactively). The PCRA court denied the petition on the basis that 

those cases did not pertain to Appellant, who was twenty-one years old when 

he murdered D.J. Appellant did not appeal. 
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Appellant filed his third PCRA petition pro se on October 6, 2018, raising 

claims of after-discovered evidence in connection with new statements 

obtained from witnesses who had testified in prior proceedings. The PCRA 

court issued notice of its intent to dismiss but retired from the bench before 

actually dismissing the petition. In 2021, with the 2018 petition still pending

but not yet reassigned to a new judge, Appellant filed another pro se PCRA 

petition raising the claim at issue in this appeal. Therein, Appellant asserted 

that in July 2021, Ja’Vonna Miller, the daughter of Tracey Johnson, contacted 

Appellant’s family to advise that Ms. Johnson had recently died and that 

Ms. Miller “may have some information that may be helpful to [Appellant’s] 

case.” PCRA Petition, 9/16/21, at 4. Appellant attached to the petition a 

notarized statement from Ms. Miller dated July 20, 2021, and the envelope in 

which it was sent to Appellant, postmarked August 5, 2021. Ms. Miller’s 

statement indicated that Ms. Johnson told her that she had lied about 

witnessing a murder, that Ms. Johnson was convinced by police to change her 

story, and that Ms. Johnson had been “working on making it right” when she 

died on May 1st, presumably of 2021. Id. at Exhibit 1. 

The case was reassigned to the present PCRA court, which appointed 

counsel to file an amended petition. Instead, counsel filed a motion to 

withdraw and an extensive no-merit brief pursuant to Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 
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213 (Pa.Super. 1988) (en banc), addressing the claims raised in both the 2018 

and 2021 petitions.

2

 

Relevant to this appeal, counsel observed that Appellant knew in 

October 2017 that Ms. Johnson told Appellant’s friend Derrick Lawrence that 

she “was never sure about who or what she witnessed. But detectives coerced 

her to testify that it was [Appellant] who committed the murder.” See 

Turner/Finley brief, 11/10/21, at 36 (quoting a letter Appellant had written 

on October 23, 2017). Appellant indicated that, as of October 2017, Ms. 

Johnson was “now willing to tell the truth.” Id. (quoting the October 23, 2017 

letter). Yet, it was not until 2021 that Appellant came forward with Ms. Miller’s 

statement, which was also signed by Derrick Lawrence. Counsel asserted that 

Appellant had no plausible explanation why he could not have discovered 

Ms. Johnson’s recantation earlier through the exercise of due diligence. Id. 

at 39-40. Accordingly, counsel opined that Appellant did not timely raise his 

after-discovered evidence claim and, in any event, Ms. Miller’s statement was 

wholly inadmissible and, thus, did not amount to after-discovered evidence. 

Id. at 70-76. 

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2

It was proper for the PCRA court to entertain both of Appellant’s pending 

petitions simultaneously. See Commonwealth v. Montgomery, 181 A.3d 

359, 365 (Pa.Super. 2018) (en banc) (“PCRA courts are not jurisdictionally 

barred from considering multiple PCRA petitions relating to the same 

judgment of sentence at the same time unless the PCRA court’s order 

regarding a previously filed petition is on appeal and, therefore, not yet 

final.”). 
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On January 12, 2022, the PCRA court issued notice of its intent to 

dismiss Appellant’s PCRA petitions without a hearing pursuant to Pa.R.Crim.P. 

907. Therein, the PCRA court indicated that Appellant’s claims were untimely 

filed and no timeliness exception applied to any of them, and that, even if they 

were timely filed, there was no material dispute of fact and they lacked merit 

as a matter of law. See Notice of Intention to Dismiss, 1/12/22, at ¶¶ 1-2, 

4. Appellant filed a motion for an extension of time, asking for an additional 

sixty days to respond to the Rule 907 notice. By order of February 22, 2022, 

the PCRA court denied Appellant’s request for an extension and denied his 

PCRA petitions for the reasons stated in the Rule 907 notice. See Order, 

2/22/22, at ¶¶ 1-2. 

Appellant filed a timely pro se notice of appeal on March 16, 2022, and 

both he and the PCRA court complied with Pa.R.A.P. 1925. This Court directed 

the PCRA court to address some irregularities in the docketing of filings in 

Appellant’s cases, as well as the fact that Appellant appealed pro se despite

counsel’s request to withdraw never having been granted. The PCRA court 

filed orders confirming that counsel was granted leave to withdraw and 

directing the correction of the docket entries. The parties thereafter filed their 

briefs in this Court, and this appeal is ripe for disposition.

Appellant presents us with the following questions:

[1.] Did the PCRA court err in failing to consider Appellant’s PCRA 

petition as timely filed?
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[2.] Did the PCRA court err in denying Appellant’s after 

discovered claim?

[3.] Did the PCRA court err in not considering the affidavit of 

Jo’Vanna Miller (biological daughter), as after discovered 

evidence of a dying declaration of her mother, Tracey 

Johnson? 

Appellant’s brief at 7 (cleaned up, some spelling corrected). 

We begin with a review of the pertinent legal precepts. “In general, we 

review an order dismissing or denying a PCRA petition as to whether the 

findings of the PCRA court are supported by the record and are free from legal 

error.” Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) 

(cleaned up). 

As to legal questions, we apply a de novo standard of review 

to the PCRA court’s legal conclusions, and this Court may affirm a 

PCRA court’s order on any legal basis. As to factual questions, our 

scope of review is limited to the findings of the PCRA court and 

the evidence of record, viewed in the light most favorable to the 

prevailing party in the lower court. Great deference is granted to 

the findings of the PCRA court, and these findings will not be 

disturbed unless they have no support in the certified record.

Id. (cleaned up). “It is an appellant’s burden to persuade us that the PCRA 

court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d 

157, 161 (Pa.Super. 2019) (cleaned up). 

It is well-settled “that the timeliness of a PCRA petition is jurisdictional 

and that if the petition is untimely, courts lack jurisdiction over the petition 

and cannot grant relief.” Commonwealth v. Fantauzzi, 275 A.3d 986, 994 

(Pa.Super. 2022). Therefore, we must first consider whether the PCRA court 

correctly ruled that Appellant’s claim was untimely filed. 
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The PCRA provides as follows regarding the time for filing a petition:

Any petition [filed pursuant to the PCRA], 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 

States;

(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). Further, a petition invoking a timeliness exception 

“shall be filed within one year of the date the claim could have been 

presented.”3 42 Pa.C.S. § 9545(b)(2). 

Here, Appellant’s judgment of sentence became final in early 2007 when 

the time for seeking review in the U.S. Supreme Court expired. Accordingly, 

Appellant’s 2021 PCRA petition is facially untimely. To confer jurisdiction over 

his claim, Appellant invoked § 9545(b)(1)(ii)’s newly-discovered-facts 

exception. As we have summarized:

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3 Claims arising before December 24, 2017, were required to have been raised 

within sixty days. 
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A petitioner satisfies the newly discovered facts exception when 

the petitioner pleads and proves 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. Due diligence 

requires reasonable efforts by a petitioner, based on the particular 

circumstances, to uncover facts that may support a claim for 

collateral relief, but does not require perfect vigilance or 

punctilious care.

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (cleaned up). 

“[T]he due diligence inquiry is fact-sensitive and dependent upon the 

circumstances presented. A petitioner must explain why he could not have 

obtained the new facts earlier with the exercise of due diligence.” 

Commonwealth v. Brensinger, 218 A.3d 440, 449 (Pa.Super. 2019) (en 

banc). Furthermore, “[i]t is well settled in Pennsylvania that the focus of the 

exception found at § 9545(b)(1)(ii) is on newly-discovered facts, not on 

newly-discovered or newly-willing sources that corroborate previously known 

facts or previously raised claims.” Commonwealth v. Maxwell, 232 A.3d 

739, 745 (Pa.Super. 2020) (en banc). 

Here, Appellant indicated that he raised his claim promptly after 

receiving Ms. Miller’s statement, which provided as follows in its entirety:

My mother, Tracy L. Johnson, informed me that she lied in 

her testimony as an eyewitness to a murder. She initially told the 

police she didn’t see anything, but later changed her story. My 

mother was and has been a drug addict and a schizo-effective 

bipolar. She was easily convinced. She felt terrible about her 

testimony and wanted to make it right. She passed on May 1st 

but we were working on making it right. So, if there [are] any 

questions or concerns or any other way that I may be of 

assistance, please feel free to contact me.

PCRA Petition, 9/16/21, at Exhibit 1. 
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At Appellant’s jury trial, Ms. Johnson testified that she was abusing crack 

cocaine and heroin during the time of D.J.’s murder, and that she obtained 

crack from Appellant in exchange for performing household tasks for him. See

N.T. Trial, 3/31/03-4/3/03, at 86, 91, 150-53. While she initially denied to 

the police having witnessed the shooting, she contacted them to say they 

should come talk to her about it while she was in a rehabilitation facility. Id. 

at 133.

In a letter to the Pennsylvania Innocence Project dated October 23, 

2017, Appellant indicated the following:

I had two Commonwealth witnesses testify at my trial, a male and 

female. Both witnesses have been in contact with a friend of mine. 

I personally spoke with the male witness and he basically told me 

that the detectives [co]erced him to give a false statement, and 

testify. I never spoke to the female witness, however, my friend 

talked to her and she confessed to the fact that at that time she 

was a crack addicted, [sic] she was never sure about who or what 

she witnessed. But detectives coerced her to testify it was me 

who committed this murder.

Both witnesses are willing to now tell the truth.

Turner/Finley brief, 11/10/21, at 36.4

Hence, it is plain that Appellant knew at the time of his 2003 trial that 

Ms. Johnson had drug addictions and did not initially identify Appellant as the 

shooter when she spoke to police at the scene. Further, by no later than 2017, 

____________________________________________

4 Counsel quoted Appellant’s letter but did not attach it to his filing. However, 

Appellant does not dispute the accuracy of counsel’s representations or that 

Appellant received the information about Ms. Johnson from Mr. Lawrence 

before authoring the letter in 2017. 
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Appellant became aware that Ms. Johnson, the only female witness who 

identified him as the shooter at his trial, again admitted that she suffered from 

a drug addiction at the time of the incident and that her trial testimony was 

false, claimed that the detectives coerced her into identifying Appellant, and 

expressed that she was willing to come forward and testify truthfully. 

The only new facts alleged in Ms. Miller’s statement were that 

Ms. Johnson suffered from mental illness at some point in her life, that she 

had died, and that, at some point prior, she had informed Ms. Miller of the 

same facts that Ms. Johnson had shared with Mr. Lawrence in 2017, namely 

that Ms. Johnson was coerced into lying at trial and wanted to come forward 

with the truth. 

Appellant does not assert that Ms. Johnson’s purported mental illness, 

her death, or her daughter’s knowledge of her past confession to lying forms 

the basis of the claim he now wishes to raise. Rather, he seeks a new trial 

based upon the fact that Ms. Johnson’s trial testimony was false and coerced 

by police detectives. See Appellant’s brief at 12. As such, Appellant has not 

founded his 2021 petition upon newly-discovered facts, but instead a new 

source for facts that he knew several years before raising his claim. Accord 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa. 2008) (“The fact 

appellant discovered yet another conduit for the same claim of perjury does 

not transform his latest source into evidence falling within the ambit of 

§ 9545(b)(1)(ii).”). 
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Since Appellant did not allege facts in his petition to explain why he 

could not have presented his claim earlier, he has failed to establish a 

§ 9545(b) timeliness exception. Cf. Commonwealth v. Medina, 92 A.3d 

1210, 1217-18 (Pa.Super. 2014) (en banc) (holding recantation testimony 

volunteered by witness years after the defendant’s trial satisfied § 9545(b)(ii) 

because the witness had previously “consistently and unequivocally” identified 

the defendant and had not disclosed earlier that his trial testimony was false 

and coerced by a police detective). Therefore, the PCRA court properly 

concluded that Appellant’s after-discovered-evidence claim was untimely 

raised. Consequently, neither the PCRA court nor this Court has jurisdiction 

to adjudicate Appellant’s substantive claim, and we have no basis to disturb 

the PCRA court’s order.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/25/2023