J-S09043-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN A. GREEN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 866 EDA 2019

Appeal from the PCRA Order Entered March 14, 2019

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

No(s): CP-51-CR-0303591-2001

BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED APRIL 17, 2020

Appellant, John A. Green, appeals, pro se, from the order denying his 

second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm.

On November 28, 2000, two officers of the Philadelphia Police 

Department observed Appellant discharge a firearm at two fleeing individuals, 

one of whom died. Appellant and one of the officers exchanged gunfire during 

an ensuing chase, and Appellant was apprehended after he was struck in the 

foot by a bullet. Appellant proceeded to a non-jury trial in the spring of 2003, 

at which his counsel extensively cross examined the officer regarding a prior 

incident in which the officer shot an individual in a moving vehicle and was 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
J-S09043-20

- 2 -

found to have violated a department directive. On May 30, 2003, the trial 

court convicted Appellant of murder of the third degree, criminal conspiracy, 

carrying a firearm on a public street, aggravated assault, recklessly 

endangering another person, and resisting arrest.2 On October 7, 2003, the 

trial court sentenced Appellant to an aggregate sentence of 19 to 38 years of 

confinement. Appellant appealed the judgment of sentence, and this Court 

affirmed the conviction. Commonwealth v. Green, No. 3340 EDA 2003 (Pa. 

Super. filed March 15, 2005) (memorandum decision). Our Supreme Court 

denied Appellant’s petition for allowance of appeal. Commonwealth v. 

Green, 880 A.2d 1236 (Pa. 2005) (table).

Appellant filed a timely pro se PCRA petition on April 20, 2006. The 

PCRA court appointed counsel for Appellant, and counsel filed an amended 

PCRA petition on December 18, 2007. The PCRA court dismissed the petition 

on April 25, 2008. Appellant appealed, and this Court affirmed the dismissal. 

Commonwealth v. Green, No. 1550 EDA 2008 (Pa. Super. filed September 

1, 2009) (memorandum decision). Our Supreme Court denied Appellant’s 

petition for allowance of appeal. Commonwealth v. Green, 991 A.2d 311 

(Pa. 2010) (table).

Appellant filed his second PCRA petition on January 30, 2018. In the 

petition, Appellant asserts that his request for PCRA relief was timely under 

the newly discovered fact exception to the PCRA’s one-year time bar. PCRA 

____________________________________________

2 18 Pa.C.S. §§ 2502, 903, 6108, 2702, 2705, and 5104, respectively.
J-S09043-20

- 3 -

Petition, 1/30/08, at 2-3, 5 (citing 42 Pa.C.S. .§ 9545(b)(1)(ii)). As the newly 

discovered fact that would support the timeliness exception, Appellant cites to 

a January 17, 2017 decision by the federal district court for the Eastern District 

of Pennsylvania, Wright v. City of Philadelphia, 229 F.Supp.3d 322 (E.D. 

Pa. 2017), in a case asserting federal civil rights and state law actions 

concerning the alleged fabrication of evidence, forced confession, and 

malicious prosecution of the plaintiff. PCRA Petition, 1/30/08, at 4-6, 12. In 

Wright, the district court denied the motion to dismiss brought by the 

defendants, the City of Philadelphia and eleven Philadelphia police officers. 

Although neither of the officers who arrested Appellant were named in the 

Wright suit, Appellant claimed in his PCRA petition that the federal decision 

shows that “the Philadelphia City Police has a common pattern, practice and 

custom of unconstitutional misconduct, which [Appellant] was in fact 

subjected to first hand.” Id. at 5. 

On December 12, 2018, the PCRA court filed a notice of its intention to 

dismiss the petition without a hearing pursuant to Rule of Criminal Procedure 

907. On March 14, 2019, the court dismissed the petition as untimely. 

Appellant filed a timely appeal of the PCRA court’s March 14, 2019 order.3

Appellant presents the following issues on appeal:

I. Did the PCRA court err as a matter of law when it failed to hold 

an evident[i]ary hearing on Appellant’s claim of Newly Discovered 

[facts] and dismissed the PCRA Petition as being Time-Barred 

____________________________________________

3 The PCRA court did not order Appellant to file a concise statement of matters 

complained of on appeal. The court issued an opinion on May 21, 2019.
J-S09043-20

- 4 -

where Appellant pled and met the exception to the PCRA TimeBar.

II. Is the Appellant entitled to the relief he seeks based on the 

recent Judicial decisions of both the Pennsylvania Superior and 

Supreme Court’s concerning the After-Discovered Facts exception 

to the PCRA Time-Bar.

Appellant’s Brief at 4 (suggested answers omitted). We review the denial of 

a PCRA petition to determine whether the record supports the PCRA court’s 

findings and whether its decision is free of legal error. Commonwealth v. 

Brown, 196 A.3d 130, 150 (Pa. 2018).

The PCRA provides that “[a]ny petition under this subchapter, including 

a second or subsequent petition, shall be filed within one year of the date the 

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be 

filed beyond the one-year period only if the petitioner alleges and proves one 

of the following three exceptions:

(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.

Id. Any petition attempting to invoke these exceptions “shall be filed within 

60 days of the date the claim could have been presented.” 42 Pa.C.S. § 
J-S09043-20

- 5 -

9545(b)(2) (former version).4 “The PCRA’s time limitations implicate our 

jurisdiction and may not be altered or disregarded in order to address the 

underlying merits of a claim.” Commonwealth v. Greco, 203 A.3d 1120, 

1124 (Pa. Super. 2019).

Appellant does not dispute that his second PCRA petition is untimely as 

it was not filed within one year of the date his conviction became final, but 

contends that his petition satisfies the newly discovered fact timeliness 

exception based upon the Wright decision. “The newly discovered fact 

exception has two components, which must be alleged and proved[:] 1) the 

facts upon which the claim was predicated were unknown and 2) could not 

have been ascertained by the exercise of due diligence.” Commonwealth v. 

Brensinger, 218 A.3d 440, 448 (Pa. Super. 2019) (en banc) (citation and 

quotation marks omitted). “Due diligence requires the petitioner take 

reasonable steps to protect his own interests.” Id. (citation and quotation 

marks omitted). 

In this matter, the PCRA court did not err in concluding that Appellant 

failed to satisfy the newly discovered facts exception. The newly discovered 

“fact” upon which Appellant relies is the federal district court decision in 

Wright; however, “judicial determinations are not facts,” and therefore 

____________________________________________

4 Appellant filed the instant PCRA petition prior to the October 24, 2018 

amendment of Section 9545(b)(2) enlarging the time period for asserting a 

timeliness exception from 60 days to one year. See Act of October 24, 2018, 

P.L. 894, No. 146, §§ 2, 4 (effective December 24, 2018).
J-S09043-20

- 6 -

“decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) 

of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011). 

Even looking at the underlying determination in Wright, the district court was 

ruling on the defendants’ motion to dismiss, and therefore the court accepted 

as true all of the allegations in the plaintiff’s complaint for the purpose of its 

decision. 229 F.Supp.3d at 325 n.1, 329. “A [c]omplaint is a pleading 

asserting allegations or accusations,” not facts. Commonwealth v. Griffin, 

137 A.3d 605, 609 (Pa. Super. 2016). Thus, the complaint that serves as the 

basis for the Wright decision does not state newly discovered “facts” that 

would allow Appellant to meet the timeliness exception of Section 

9545(b)(1)(ii). Compare Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 

2014) (holding that “[s]imply relying on conclusory accusations made by 

another, without more, is insufficient to warrant a hearing” for a new trial 

based on supposed after-discovered evidence); Griffin, 137 A.3d at 609 

(allegations contained in a federal rights complaint do not constitute afterdiscovered evidence that would authorize a trial court to grant a new trial).

As Appellant did not satisfactorily plead an exception to the one-year 

PCRA time bar based on a newly discovered fact, the PCRA court properly 

dismissed Appellant’s petition as untimely.

Order affirmed. 
J-S09043-20

- 7 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/17/20