J-S04040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JERMAINE JACKSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1876 EDA 2022

Appeal from the PCRA Order Entered June 27, 2022

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

No(s): CP-51-CR-0502831-2004

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 15, 2023

Jermaine Jackson (Jackson) appeals from the order of the Court of 

Common Pleas of Philadelphia County (PCRA court) denying as untimely his

third petition for relief filed pursuant to the Post-Conviction Relief Act (PCRA), 

42 Pa.C.S. §§ 9541-9546. We affirm.

I.

In July 2005, Jackson was convicted at a bench trial of possession with 

intent to deliver and possession of a controlled substance.

1

 This Court has 

previously set forth the facts underlying his convictions:

On February 25, 2004, Philadelphia police concluded a 

targeted narcotics investigation and arrested a drug dealer who 

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30), (16).
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was found to be in possession of 160 grams of cocaine. Police 

were quickly able to persuade the dealer to become a confidential 

informant (CI). Later that day, the CI provided tips to police in a 

showing of good faith; these tips resulted in the arrests of two 

other street dealers, presumably supplied by the source that had 

been supplying the CI, and the confiscation of another 265.6 

grams of cocaine.

The CI also provided police with the name, address, and 

practices of his supplier—[Jackson]. The CI informed police he 

still owed [Jackson] $3,100 for the cocaine that previously had 

been confiscated from his person and further informed police that 

if he paid [Jackson] the outstanding balance, he would then be resupplied. The CI also told police he had been in [Jackson’s] home 

earlier that day and had witnessed [Jackson] in possession of 

approximately 18 ounces of cocaine. The next day, February 26, 

2004, police obtained a search warrant relying on the information 

provided by the CI. The search warrant affidavit stated “The 

warrant will only be served if the [CI] enters ... and provides 

Jackson with the $3,100.00 pre-recorded buy money.” The 

district magistrate approved the warrant.

Later that afternoon, police met with the CI, provided him 

with $3,100 in pre-recorded buy money, and instructed him to ask 

[Jackson] for more cocaine. Police then set up surveillance on 

[Jackson’s] residence, dropped the CI off in the immediate area, 

and watched from a distance as he entered [Jackson’s] residence. 

A few moments later, the CI exited [Jackson’s] house and told 

police he had requested another 18 ounces of cocaine from

[Jackson] but that [Jackson] needed to re-supply himself before 

filling the request.

Shortly thereafter, police observed [Jackson] and his wife 

exit the residence and drive off. Police followed [Jackson] to a 

street corner. [Jackson] exited his vehicle, approached a white 

Pontiac sitting on the street, and got into the back seat of the 

Pontiac. Police waited for the next two minutes until [Jackson]

got out of the Pontiac. [Jackson] then drove off.

Moments later, the CI, who was in the presence of police, 

received a call from [Jackson], who told the CI he had “gotten the 

stuff.” Within minutes, police stationed at [Jackson’s] residence 

observed him returning home. [Jackson] exited the vehicle he 

had been driving, while his wife remained inside.
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Once [Jackson] entered his residence, police quickly 

converged on the front entrance. After getting to the mouth of 

the entry way, police observed [Jackson] through a screen door 

sitting on a chair with items on his lap. Police announced their 

presence and [Jackson], startled, shot out of his seat. Four large 

bags of cocaine fell from his lap and onto the floor. Meanwhile, 

two other officers confronted [Jackson’s] wife in the vehicle 

parked out front.

The four bags of cocaine that had fallen from [Jackson’s] lap 

contained approximately 18 ounces of cocaine. Upon searching 

the remainder of [Jackson’s] residence, police uncovered four 

more bags of cocaine containing an aggregate of approximately 

300 grams. A search of [Jackson’s] wife resulted in the recovery 

of $3,674 in cash, including the $3,100 in pre-recorded buy 

money.

After being bound over for trial, [Jackson] retained private 

counsel. Shortly thereafter, [Jackson] filed a motion to compel 

the disclosure of the identity of the CI. The motion was denied on 

August 10, 2004. On March 18, 2005, [Jackson] filed a pro se

suppression motion seeking to exclude the drugs recovered from 

his residence and the pre-recorded buy money recovered from his 

wife. At some point it became clear that private defense counsel 

had a number of scheduling conflicts with the trial court docket; 

as a result, the trial court appointed backup counsel. 

Subsequently, [Jackson] terminated his private defense counsel’s 

representation and opted to proceed with appointed backup 

counsel.

On July 7, 2005, after consulting with appointed backup 

counsel, [Jackson] signed and initialed a jury trial waiver colloquy. 

On that same day, the trial court issued an Order granting 

appellant’s motion to suppress with respect to the pre-recorded 

buy money seized from his wife but denying the motion with 

respect to the cocaine recovered from appellant’s residence. Later 

that day, a bench trial was held at the conclusion of which the trial 

court rendered its judgment.

Commonwealth v. Jackson, No. 559 EDA 2007, unpublished memorandum

at 1-4 (Pa. Super. filed December 27, 2007).
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After being found guilty, Jackson obtained new counsel and filed a postverdict motion seeking a new trial. As a result, sentencing was deferred while 

the trial court held several hearings on the post-verdict motion, which it 

eventually denied. Finally, on January 31, 2007, the trial court sentenced him

to 7 to 14 years’ imprisonment. This Court affirmed the judgment of sentence 

in December 2007, and the Pennsylvania Supreme Court denied his petition 

for allowance of appeal in June 2009.2 Jackson filed his first PCRA petition the 

following month in July 2009, and the PCRA court dismissed the petition a 

year later in July 2010. Jackson waited nine years until he filed his second 

petition in July 2019. The PCRA court denied the petition as untimely in 

August 2019.

On April 1, 2020, Jackson filed this, his third, pro se PCRA petition

requesting that his sentence be adjusted because he was still serving an illegal

mandatory sentence.

3

 Almost a year later, on March 9, 2021, Jackson filed

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2 Commonwealth v. Jackson, 973 A.2d 1006 (Pa. filed June 22, 2009).

3 To be eligible for relief under the PCRA, a petitioner must be “currently 

serving a sentence of imprisonment, probation, or parole for the crime.” 42 

Pa.C.S. § 9543. As noted, Jackson was sentenced to 7 to 14 years’ 

imprisonment on January 31, 2007, thus giving him an original maximum 

sentence date of January 31, 2021. In his petition, Jackson alleged that he 

was still serving his sentence, alleging that “[due] to parole my sentence max 

date has been changed to sometime in 2024” and that he “is [in] on another 

case and needs this matter taken care of to continue to fight his other case.” 

As neither the PCRA court nor the Commonwealth has disputed that Jackson 

is currently still serving his sentence on this case, nor will we.
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another petition appearing to raise a newly-recognized constitutional right 

claim based on our Supreme Court’s decision in Commonwealth v. 

McClelland, 233 A.3d 717 (Pa. 2020) (holding that the Commonwealth 

cannot rely on hearsay alone to establish prima facie at a preliminary hearing). 

Then, on May 27, 2021, Jackson filed another supplement in which he alleged 

that the detectives in his case were “part of the corrupt cops.” Because of 

this allegation, on July 28, 2021, the Commonwealth sent Jackson the police 

misconduct disclosure packets for two officers involved in his case.

After receiving the packets, on August 22, 2021, Jackson supplemented 

his petition by adding a newly-discovered evidence claim based on the 

information that two of the officers in his cases were corrupt. Based on this 

information, Jackson alleged that the officers presumably lied and fabricated 

the CI so as to obtain the search warrant. Related to this assertion, Jackson 

added a claim of ineffective assistance of counsel, alleging that all of his prior 

attorneys were ineffective in failing to compel disclosure of the CI.

On March 7, 2022, the PCRA court issued notice of its intent to dismiss 

the petition without hearing under Pa.R.Crim.P. 907, explaining that none of 

Jackson’s claims fell under any of the timeliness exceptions to the PCRA timebar. After receiving a response from Jackson, the PCRA court formally denied 

his petition as untimely on June 27, 2022, following which Jackson filed this 

timely appeal.
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On appeal, Jackson raises five issues for review, which we have 

reordered for ease of discussion:

1. Did the PCRA court err in denying Jackson’s motion to disclose 

confidential informant?

2. Did the PCRA court err in denying Jackson’s claims of ineffective 

assistance of counsel?

3. Did the PCRA court err in denying Jackson’s claims of hearsay

evidence?

4. Did the PCRA court err in not correcting Jackson’s sentence 

when there are no mandatory sentences in Pennsylvania?

5. Did the PCRA court err in denying Jackson’s motion to disclose 

confidential informant?

Jackson’s Brief at unpaginated 3.

II.

A PCRA petition, including a second or serial petition, must be filed 

within one year of the date the judgment becomes final. 42 Pa.C.S.

§ 9545(b)(1).

4 A judgment 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). Because the timeliness requirements 

of the PCRA are jurisdictional in nature, courts cannot address the merits of 

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4 Whether a PCRA petition is timely raises a question of law for which our 

standard of review is de novo. Commonwealth v. Reid, 235 A.3d 1124,

1166 (Pa. 2020).
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an untimely petition. Commonwealth v. Moore, 247 A.3d 990, 998 (Pa.

2021) (citation omitted).

Jackson’s judgment of sentence became final in 2009 when his time to 

file a petition for writ of certiorari in the United States Supreme Court expired.

See 42 Pa.C.S. § 9545(b)(3). He must, therefore, plead and prove for each 

of his claims one of the three enumerated exceptions to the PCRA time-bar:

(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)(i)-(iii). Additionally, Section 9545(b)(2) requires that 

any petition attempting to invoke one of these exceptions “be filed within one 

year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

In his first issue, Jackson challenges the denial of his motion to disclose 

the CI’s identity was raised on direct appeal. However, he raised this issue 

on direct appeal, and this Court reviewed its merits and found no relief due. 

See Jackson, No. 559 EDA 2007, at 11-13. As a result, this claim has already 

been litigated. See 42 Pa.C.S. § 9544(a) (“[A]n issue has been previously 
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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[.]”).

For his second issue, Jackson alleges that all his prior attorneys were 

ineffective in failing to compel disclosure of the CI’s identity. In so alleging, 

though, Jackson fails to plead and prove any of the timeliness exceptions,

asserting instead that no waiver should be found because of cumulative 

counsel error. However, “[i]t is well settled that allegations of ineffective 

assistance of counsel will not overcome the jurisdictional timeliness 

requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120,

1127 (Pa. 2005) (citations omitted). Thus, his second claim is untimely.

As for his third issue, Jackson attempts to raise a claim challenging the 

use of hearsay at his preliminary hearing. It is well-settled, however, that 

any purported defect or error at the preliminary hearing stage is immaterial if 

the defendant has been found guilty at trial. See Commonwealth v.

Sanchez, 623 Pa. 253, 82 A.3d 943, 984 (2013) (holding, “once a defendant 

has gone to trial and has been found guilty of the crime or crimes charged, 

any defect in the preliminary hearing is rendered immaterial” (citation 

omitted).

We also find no relief due to the extent Jackson is attempting to raise a 

newly-recognized constitutional right claim under Section 9545(b)(1)(iii)

based on our Supreme Court’s decision in McClelland.

Subsection (iii) of Section 9545(b)(1) has two requirements. 

First, it provides that the right asserted is a constitutional right 
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that was recognized by the Supreme Court of the United States or 

[the Pennsylvania Supreme Court] after the time provided in this 

section. Second, it provides that the right “has been held” by 

“that court” to apply retroactively. Thus, a petitioner must

prove that there is a “new” constitutional right and that the

right “has been held” by that court to apply retroactively ...

to cases on collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (citation 

omitted) (emphasis in original).

In his brief, Jackson fails to recognize the untimeliness of his claim, not 

to mention that he fails to address whether the Pennsylvania Supreme Court 

has held that the constitutional right recognized in McClelland applies 

retroactively, which, based on our review, it has not. Thus, McClelland

cannot serve as a basis for a newly-recognized constitutional right claim at 

this time. See Commonwealth v. Slaughter, 2022 WL 122472, at *3 (Pa. 

Super. 2022) (non-precedential decision) (finding PCRA court properly 

rejected newly-recognized constitutional right claim based on McClelland).

5

We find the same concerning Jackson’s fourth issue in which he seeks a 

non-mandatory sentence. While he does not cite any case law for this claim, 

Jackson presumably relies on Alleyne v. United States, 570 U.S. 99 (2013)

(holding that any fact which increases the mandatory minimum sentence for 

a crime is an element of that crime and, therefore, must be submitted to a 

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5 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential 

memorandum decisions of the Superior Court filed after May 1, 2019, may be 

cited for their persuasive value).
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jury and proven beyond a reasonable doubt). Besides Jackson failing to file 

this claim until several years after Alleyne was issued, our Supreme Court 

has explicitly held that Alleyne does not apply retroactively on collateral 

review. See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 

2016).

Finally, in his fifth issue, Jackson asserts that the PCRA court erred in 

denying his after-discovered evidence claim, which he mistakenly labels a 

newly-discovered facts claim. As our Supreme Court has explained:

the newly-discovered facts exception to the time limitations of the 

PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from the

after-discovered evidence basis for relief delineated in 42 Pa.C.S.

§ 9543(a)(2). To qualify for an exception to the PCRA’s time 

limitations under subsection 9545(b)(1)(ii), a petitioner need only 

establish that the facts upon which the claim is based were 

unknown to him and could not have been ascertained by the 

exercise of due diligence. However, where a petition is otherwise 

timely, to prevail on an after-discovered evidence claim for relief 

under subsection 9543(a)(2)(vi), a petitioner must prove that (1) 

the exculpatory evidence has been discovered after trial and 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. Burton, 158 A.3d 618, 629 (Pa. 2017). All four of these 

requirements must be proved; if the defendant fails to establish any one of 

these, the newly-discovered evidence claim fails. Commonwealth v. Small,

189 A.3d 961, 972 (Pa. 2018); Commonwealth v. Padillas, 997 A.2d 356,

363 (Pa. Super. 2010).
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Assuming that Jackson satisfied the newly-discovered fact timeliness 

exception, we would find this claim meritless. Jackson presents no evidence 

specific to this case about how any of the detectives or officers conducted their 

investigation. Instead, he merely relies on unrelated misconduct on cases 

that happened long after 2005 when the search in this case occurred. As this 

Court has previously explained on this area of the law:

Evidence of a police witness’s subsequent misconduct in other 

unrelated cases does not satisfy the requirements for a new trial 

based on after-discovered evidence. [Commonwealth v.] 

Johnson, 179 A.3d [1105, 1122-33 (Pa. Super. 2018)] (affirming 

denial of PCRA after-discovered evidence claim based on criminal 

convictions of police detective who testified at defendant’s trial 

and was involved in questioning a witness who identified the 

defendant, where convictions occurred years after defendant’s 

trial and arose out of conduct in an unrelated case);

Commonwealth v. Foreman, 55 A.3d 532, 534-35, 537 (Pa.

Super. 2012) (affirming denial of PCRA after-discovered evidence 

claim based on criminal charges against police detective who 

testified at defendant’s trial, where charges arose out of conduct 

in an unrelated case that occurred more than two years after 

defendant’s trial); see also Commonwealth v. Griffin, 137 A.3d

605, 610 (Pa. Super. 2016) (reversing grant of new trial based on 

after-discovered evidence of misconduct of police officer who 

testified at defendant’s trial where alleged misconduct was in 

unrelated case); Commonwealth v. Brown, 134 A.3d 1097,

1108-09 (Pa. Super. 2016) (rejecting after-discovered evidence 

claim based on interrogating police detectives’ misconduct in 

unrelated cases).

Commonwealth v. Rouse, 2019 WL 5858067, at *3 (Pa. Super. filed 

November 8, 2019) (non-precedential decision).6

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6 See Footnote 5.
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Consistent with these cases, we find no error in the PCRA court’s 

conclusion that this issue was meritless because there was no evidence of 

wrongdoing or misconduct in Jackson’s case. Indeed, as the PCRA court 

explained:

The [police misconduct packets that Jackson] submitted do not 

make out a claim of newly discovered evidence. The packet for 

Officer Coolen proves misconduct that occurred years after your 

case. The packet for Officer Beattie only states that he was under 

investigation as of September 2020. This is not dispositive of any 

wrongdoing at or before the time of your case.

Rule 907 Notice, 3/7/22, at 1-2.

Accordingly, we find that the claim was meritless and, therefore, did not 

raise a genuine issue warranting an evidentiary hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/15/2023