J

- S04040

- 23

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

COMMONWEALTH OF PENNSYLVANIA

v.

JERMAINE JACKSON

Appellant : :
: :
: :
: :
: 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 f rom 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

- Convic tion Relief Act (PCRA),

42 Pa.C.S. §§ 954 1

- 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

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780

- 113(a)(30), (16).J

- S04040

- 23

- 2

-

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 poli ce that if he paid [Jackson] the outstanding balance, he would then be re

supplied. 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, Fe bruary 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. ” T he 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 th at [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 wh ite 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 c all 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.J

- S04040

- 23

- 3

- Once [Jackson] entere d 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] , startle d, 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 gram s. 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 bu y 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 pr ivate 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 iss ued 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 con clusion 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).J

- S04040

- 23

- 4

-

After being found guilty, Jackson obtained new counsel and filed a post

verdict 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 t he PCRA court dism issed 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 a n illegal

mandator y sentence

. 3 Almost a year later, o n March 9, 2021, Jackson filed

_________________ __________ ______ ____ _______

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

3 To be eligible for relief under the PCRA, a petition er must be “currently serving a sentence of imprisonment, probation, or parole for the crime.” 42 Pa.C.S. § 95 43 . As noted, Jackson was sentenced to 7 to 14 years’ imprisonment on January 31, 2007 , thus giving him a n 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 cu rrently still serving his sentence on this case, nor will we.J

- S04040

- 23

- 5

-

a nother petition appearing to raise a newly

- recognized constitutional right

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

McCl elland , 233 A.3d 717 (Pa. 2020) (holding that the Commonwealth
cannot rely on hearsay alone to establish prima facie at a preliminary hearing).

The n, 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

informa tion that two of the officers in his cases were corrupt. Based on this
information, Jackson alleged that the officers presum ably 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, all eging that all of his prior

attorney s were ineffective in failing to compel disclosure of the CI.
On March 7, 2022 , the PCRA court issued notice of its int ent 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 time

bar. 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.J

- S04040

- 23

- 6

-

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

reordered for ease of disc ussion :

1. D id 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 Pennsylva nia?

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 jur isdictional in nature, courts cannot address the merits of

_________________ __________ ______ ____ _______

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)

.J

- S04040

- 23

- 7

-

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 Pen nsylvania 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 , th is claim has already
been litigated. See 42 Pa.C.S. § 9544(a) (“[A]n issue has been previouslyJ

- S04040

- 23

- 8

-

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 cumu lative

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 charg ed,
any defect in the preliminary hearing is rendered immaterial” (citation
omitted).

W e 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 Suprem e 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 rightJ

- S04040

- 23

- 9

-

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 he ld” 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 fail s 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

_________________ __________ ______ ____ _______

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).J

- S04040

- 23

- 10

-

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 s ubsection 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 otherw ise 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)

.J

- S04040

- 23

- 11

-

A ssuming 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. [ Commonwe a lth 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 w ho 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 clai m 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

_________________ __________ ______ ____ _______

6 See Footnote 5.J

- S04040

- 23

- 12

-

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 dis covered 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 merit less 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