J-S36017-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

JOHN BUTTS, 

 Appellant No. 2207 EDA 2013 

Appeal from the PCRA Order July 11, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0800501-1994 

BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.*

 

MEMORANDUM BY JENKINS, J.: FILED AUGUST 20, 2014 

 John Butts appeals from an order entered on July 11, 2013 dismissing 

his Post Conviction Relief Act (“PCRA”)1

 petition as untimely. We affirm. 

 A jury found Butts guilty of first degree murder and possession of an 

instrument of crime.2 On April 3, 1996, the trial court sentenced him to life 

imprisonment without the possibility of parole. Butts appealed, and on April 

8, 2001, this Court affirmed his judgment of sentence. He did not appeal to 

the Pennsylvania Supreme Court. 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 

1

 42 Pa.C.S. § 9541 et seq. 

2

 18 Pa.C.S. §§ 2502(a), 907, respectively. 
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On June 14, 2005, Butts filed a PCRA petition, and on April 6, 2006, he 

filed an amended PCRA petition. Both petitions alleged after-discovered 

evidence consisting of an affidavit from Jaquoy Johnson claiming that she 

witnessed the victim holding a firearm moments before the shooting. Trial 

Court Opinion, 10/15/2013 (“Trial Court Opinion”), at 3. Butts claims that he 

did not know at the time of trial about Johnson’s presence at the scene of 

the crime, and that her affidavit constitutes after-discovered evidence, an 

established exception to the PCRA’s one-year statute of limitations. Id. 

On November 11, 2008, the PCRA court issued a notice of intent to 

dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. 

Id. at 1-2.3

 Butts did not file a response. The notice of intent advised Butts 

that the PCRA court intended to dismiss the petition without a hearing on 

December 10, 2008, but the record reflects that the court did not file an 

order of dismissal.4

____________________________________________ 

3

 The Clerk of Court did not enter this Pa.R.Crim.P. 907 notice to dismiss 

without a hearing on the docket. However, Butts concedes he received the 

notice. See Petition Under PCRA to Allow Appeal Nunc Pro Tunc, Exhibit A, 

Robert B. Mozenter, Esquire’s Letter to the Honorable Peter F. Rogers dated 

June 3, 2010 (“On November 7, 2008 I received a Notice Pursuant to 

Pennsylvania Rule of Criminal Procedure 907, stating that the PCRA that I 

filed on behalf of my client, Ishmael Jones [also known as John Butts] 

w[ould be] dismissed on December 10, 2008”). 

4

 Pa.R.Crim.P. 907 imposes two duties on a PCRA court dismissing a petition 

without a hearing: (1) delivery of the notice of intent to dismiss without a 

hearing to petitioner; and (2) delivery of the order of dismissal. See 

Pa.R.Crim.P. 907(1),(4). The trial court delivered to Butts only the notice of 

intent to dismiss without a hearing. 
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On April 4, 2011, Butts filed a PCRA petition to allow an appeal nunc 

pro tunc, even though the court had not yet dismissed his petition. The court 

did not act on this petition. Apparently because of the court’s inaction, on 

September 4, 2012, Butts re-filed his PCRA petition, alleging that the same 

after-discovered evidence entitled him to relief. On March 21, 2013, Butts’ 

PCRA counsel sent a letter to the PCRA court stating Butts was still awaiting 

the 907 notice and the official dismissal of the petition. Id. at 2. On May 3, 

2013, the PCRA court sent a Pa.R.Crim.P. 907 notice of its intent to dismiss 

the April 4, 2011 and September 4, 2012 PCRA petitions as time-barred and 

devoid of merit. Butts did not file a response, and on July 11, 2013, the 

PCRA court orally dismissed all three of the PCRA petitions in open court.5

N.T. 7/11/2013, pp. 3-4; Pa.R.Crim.P. 114(B)(3)(b) (service of order may 

be accomplished “orally in open court on the record”). Butts filed a timely 

appeal, and both Butts and the trial court complied with Pa.R.A.P. 1925. 

Butts filed a timely appeal in which he raises a single issue: 

I. WHETHER THE PCRA COURT ERRED IN DISMISSING 

THE PCRA PETITION AS UNTIMELY AND WITHOUT 

HOLDING AN EVIDENTIARY HEARING ON THE 

NEWLY DISCOVERED EVIDENCE OF ACTUAL 

INNOCENCE? 

Appellant’s Brief at 4.

____________________________________________ 

5 The PCRA court stated: “That [PCRA] matter is dismissed.” N.T. 

7/11/2013, p. 3. We construe this broad language to dismiss all three of the 

petitions pending before the court, those filed on April 6, 2006, April 4, 

2011, and September 4, 2012. 
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As a preliminary matter, Butts confuses the burden of proof for PCRA 

matters. He argues “the Commonwealth had the burden of proving no 

genuine issue of fact exists [and] it did not satisfy that burden[. Therefore,] 

the PCRA [c]ourt erred when it dismissed the PCRA petition without an 

evidentiary hearing.” Appellant’s Brief at 11. Butts, as a PCRA petitioner, 

had the burden of proving by a preponderance of the evidence that he is 

entitled to relief under the PCRA and that his petition is timely. See 42 

Pa.C.S. § 9543(a); Commonwealth v. Jones, 54 A.3d 14, 17 

(Pa.Super.2012) (PCRA petitioner’s burden to plead and prove exception to 

the one-year limitation). 

The timeliness of a PCRA petition is a jurisdictional requisite. 

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008). “Jurisdictional 

time limits go to a court’s right or competency to adjudicate a controversy.” 

Id. A PCRA petition must be filed within one year of the date on which the 

judgment of sentence becomes final, unless the petitioner meets one or 

more of the limited exceptions set forth in 42 Pa.C.S. § 9545(b)(1).6 A 

____________________________________________ 

6

 These exceptions are: 

(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 

(Footnote Continued Next Page) 
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judgment is deemed 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 

review.” 42 Pa.C.S. § 9545(b)(3). A petition invoking one of these 

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

have been presented. 42 Pa.C.S. § 9545(b)(2). 

Butts’ judgment of sentence became final on May 8, 2001, the 

deadline for seeking review with our Supreme Court from this Court’s order 

on direct appeal affirming his judgment of sentence. See Pa.R.A.P. 1113(a) 

(appellant must file a Petition for Allowance of Appeal to the Supreme Court 

within 30 days from entry of Superior Court’s final order). Accordingly, Butts 

had one year, until May 8, 2002, to file a timely PCRA petition. 42 Pa.C.S. § 

9545(b)(1). He filed his original petition on June 14, 2005, approximately 

three years after the expiration of time for seeking review, and filed the 

present petition on April 4, 2011, approximately nine years after the 

expiration of time. Therefore, both petitions are untimely. 

(Footnote Continued) _______________________ 

(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). 
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Butts insists that Jaquoy Johnson’s affidavit satisfies the afterdiscovered evidence exception to the one-year statute of limitations.7 See 

42 Pa.C.S. § 9545(b)(1)(ii) (excusing late-filed PCRA petitions when “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”).

Specifically, Butts asserts that on the night of the shooting, Johnson 

witnessed the victim enter the victim’s residence with a firearm and 

thereafter exit the home holding the same firearm. Trial Court Opinion, at 3. 

She allegedly saw Butts standing on the outside of the property on the 

victim’s steps. Id. Butts claims that neither he nor his defense team knew 

about Johnson’s presence at the scene of the crime and her exculpatory 

testimony at the time of trial. He also contends that Johnson’s affidavit 

defeats the finding of first degree murder, because if her testimony is 

credible, “there was no evidence of deliberation” and “no evidence from 

which the jury could rationally conclude that [Butts] formed a plan to kill 

[the victim].” Id. at 12, 13. 

____________________________________________ 

7 On February 24, 2006, the PCRA court “permitted the defense, after 

hearing argument by the Commonwealth, to secure an affidavit for the 

witness (Jaquoy Johnson) who was to supposedly provide exculpatory 

evidence in this case. The [PCRA] court granted the defense sixty (60) days 

to secure the affidavit . . . .” Trial Court Opinion, at 5 n. 4. Although Butts 

did not secure an affidavit from Johnson detailing the contours of her 

recollection of the events leading up to the shooting, on April 6, 2006, the 

defense attached Johnson’s affidavit to his amended PCRA petition, which 

verified the accuracy of the information contained in the petition. 
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To obtain relief based upon newly-discovered evidence under the 

PCRA, 

a petitioner must establish that: (1) the evidence 

has been discovered after trial and it could not have 

been obtained at or prior to trial through reasonable 

diligence; (2) the evidence is not cumulative; (3) it 

is not being used solely to impeach credibility; and 

(4) it would likely compel a different verdict. 

Commonwealth v. D'Amato, 856 A.2d 806, 823-24 (2004) (internal 

citations omitted). 

Butts’ claim is untimely because he fails to demonstrate that he filed 

his petition within 60 days of the date his claim of newly discovered evidence 

could have been presented. See 42 Pa.C.S. § 9545(b)(2). In his original and 

subsequent petitions, Butts failed to specify precisely when the exculpatory 

evidence became available and why the evidence was not available at the 

time of trial through the exercise of reasonable due diligence. See Petition 

Under PCRA to Allow Appeal Nunc Pro Tunc, ¶¶ 8-11. The record is 

confusing as to when Butts first learned about Johnson’s observations of the 

victim before the shooting. Although Butts’ original 2005 PCRA petition 

references Johnson’s testimony, and the record includes Johnson’s signed 

acknowledgement of receipt of a subpoena dated February 23, 2006, the 

affidavit signed by Johnson is dated April 6, 2006. On appeal, however, 

Butts asserts: 

Petitioner’s claim relies on the [a]ffadavit of Jaquoy

Johnson dated April 2, 2004. The PCRA petition was 
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filed June 14, 2005 which is within 60 days of the 

discovery of the new information on April 2, 2004. 

Appellant’s Brief at 13 (emphasis added). Accepting the accuracy of the 

dates in Butts’ brief, June 14, 2005 is over a year after the discovery of 

information on April 2, 2004, rendering the instant petition untimely under 

the exception. Even if Johnson’s affidavit was dated April 2, 2005, his June 

14, 2005 petition was still filed more than 60 days later. Thus, Butts failed to 

file the PCRA petition within 60 days of discovering Johnson’s exculpatory 

information. See 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Jones, 54 

A.3d 14, 17 (Pa.Super.2012) (PCRA petitioner has the burden to plead and 

prove exception to the one-year limitation). 

Nor does Butts demonstrate why he could not have discovered 

Johnson’s information at the time of trial through the exercise of reasonable 

due diligence. Butts does not state when or how he acted with due diligence 

in ascertaining the new information, i.e., what actions he took prior to or 

during trial that would have been reasonably calculated to reveal Johnson’s 

testimony. This alone constitutes a basis for denying relief. See, e.g., 

Commonwealth v. Yarris, 731 A.2d 581, 588-91 (Pa.1999) (claim failed 

because appellant did not make sufficient proffer of why it took so long to 

present claim and therefore did not show that he acted with due diligence). 

Butts cites to authorities from other jurisdictions that expound on the due 

diligence requirement for prisoners. See Appellant’s Brief at 12-13. These 

decisions are not binding; nor does he apply their rationale to his case. Id. 
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Butts was not incarcerated at the time of trial; thus, these holdings are 

patently irrelevant. In short, Butts fails to establish he acted with due 

diligence in obtaining Johnson’s testimony.

Even if we were to reach the merits of Butts’ argument, his claim for 

relief would fail because, as the PCRA court reasons, the newly discovered 

evidence would not likely compel a different verdict. See, e.g., D’Amato, 

856 A.2d at 823-24. Trial Court Opinion, at 5. 

In Commonwealth v. Holmes, the petitioner claimed the afterdiscovered evidence exception applied to his proffer of an affidavit of an 

eyewitness who claimed he saw another individual, not the petitioner, 

commit the crime. 905 A.2d 507, 511-512 (Pa.Super.2006). Because the 

Commonwealth presented adequate evidence of the petitioner’s guilt beyond 

a reasonable doubt, we held that the affidavit would not have compelled a 

different verdict, and thus the evidence failed to satisfy the requirements of 

the exception to the PCRA time-bar. 

Here, the PCRA court reasoned: 

[A]s in the Holmes case, [Butts’] claim of 

supposed newly discovered evidence would not have 

compelled a different verdict. In his statement on 

appeal, [Butts] merely states that ‘the presence of a 

gun with the victim and the sound of gunshots 

coming from the steps of the property are 

exculpatory in nature.’ [Butts] is incorrect in that 

assumption. The Commonwealth’s evidence admitted 

at trial was adequate and sufficient to convict 

[Butts]. 
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Trial Court Opinion, at 5 (no quote citation in original). Moreover, when we 

addressed Butts’ challenge to the sufficiency of the evidence on direct 

appeal, we opined: 

 [Butts] fired at least four shots at the fleeing 

victim, who was struck by two of them, one at such 

an angle as to pass through both thighs, and the 

other entering the victim’s chest and exiting through 

his side. Despite [Butts’] claim that the flight path of 

the bullet which struck the victim’s chest was 

determined by the kickback of the gun caused by the 

first, lower shot, there is no definitive means of 

ascertaining which bullet struck first. However, this 

lack of clarity presents no impediment to the jury’s 

conclusion. 

 

 In Commonwealth v. Wyche, 467 A.2d 636, 

637 (Pa. Super. 1983), this Court held that even 

though the fatal bullet penetrated a non-vital part of 

the victim’s body, the buttocks, the jury could 

properly infer specific intent to kill from the fact that 

the appellant fired multiple shots at the victim. Here, 

as in Wyche, multiple shots were fired. Moreover, 

the lethal shot did in fact strike a vital part of the

victim’s body, as [Butts’] perseverance in continuing 

to fire as the victim ran clearly meant that it should 

do. Thus, the evidence was clearly sufficient to 

support the verdict. 

Commonwealth v. Butts, 1190 EDA 2000, at *3 (Pa.Super.2001) 

(unpublished memorandum). Johnson’s affidavit does not undermine our 

reasoning that the evidence was sufficient to support his conviction for firstdegree murder. Accordingly, Johnson’s affidavit would not have compelled a 

different verdict. 
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Order affirmed.

8

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014 

____________________________________________ 

8 The PCRA court also addressed Butts’ argument that the Commonwealth’s 

evidence was insufficient to convict him of first-degree murder because the 

prosecution failed to prove he acted with malice when he shot the victim. 

Trial Court Opinion, at 5. Butts does not present this argument on appeal 

and thus we find it abandoned. Moreover, this issue was previously litigated 

before this Court and, thus, not cognizable. See Commonwealth v. Butts, 

1190 EDA 2000 (Pa.Super.2001) (unpublished memorandum); 42 Pa.C.S. § 

9543(a)(3); Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa.2009) 

(issue previously litigated not cognizable and “an issue has been previously 

litigated if ‘the highest appellate court in which the petitioner could have had 

review as a matter of right has ruled on the merits of the issue’”) (quoting 

42 Pa.C.S. § 9544(a)(2)).