J-A21038-15

*Justice Fitzgerald, who is specially assigned to the Superior Court, did not 

participate in this decision.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CALVIN JOHNSON,

Appellant No. 28 EDA 2015

Appeal from the PCRA Order entered November 20, 2014,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, at No(s): CP-51-CR-1021331-1984

BEFORE: ALLEN, MUNDY, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 22, 2015

Calvin Johnson (“Appellant”) appeals pro se from the order denying his 

third petition for post-conviction relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history have been summarized as 

follows:

On September 10, 1985, [Appellant] was found guilty 

by a jury of the offenses of first degree murder and 

possession of an instrument of crime. The sentence 

imposed by the [trial] court, a term of life imprisonment 

and a consecutive term of from two and one-half to five 

years [of] imprisonment, was affirmed on direct appeal by 

order dated June 12, 1987. The [Pennsylvania] Supreme 

Court denied allowance of appeal on [January 28, 1988]. 

Commonwealth v. Johnson, 531 A.2d 32 (Pa. Super. 

1987) (unpublished memorandum), appeal denied, 517 
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Pa. 662, 538 A.2d 875 (1988). Appellant then filed a PCRA 

petition, which was denied by the trial court. [This] Court 

affirmed the denial of PCRA relief. Commonwealth v. 

Johnson, 718 A.2d 858 (Pa. Super. 1998) (unpublished 

memorandum), appeal denied, 558 Pa. 599, 735 A.2d 

1268 (1999). Appellant filed a second PCRA petition on 

December 10, 1999, which was dismissed without a 

hearing by the PCRA court on timeliness grounds.

Commonwealth v. Johnson, No. 2402 EDA 2001 (Pa. Super. 2002) 

unpublished memorandum at 1-2. On December 19, 2002, this Court 

rejected Appellant’s claim that the PCRA court possessed jurisdiction over his 

otherwise untimely petition based upon a claim of “government 

interference.” Id. at 4 (citing 42 Pa.C.S.A § 9545(b)(1)(i)). 

Appellant filed the PCRA petition at issue, his third, on May 23, 2012. 

“After conducting an extensive and exhaustive review,” the PCRA court 

concluded that Appellant’s third petition “was untimely filed and that none of 

the timeliness exceptions applied.” PCRA Court Opinion, 2/23/15, at 2. This 

appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

Within his pro se brief, Appellant raises the following issues:

I. Whether [the PCRA] court possessed jurisdiction of 

government interference claim – namely government fraud 

on the court claim?

II. Whether [the PCRA court] erred in dismissing 

[Appellant’s third PCRA] petition as untimely pursuant to 

fraud on the court claim?

III. Whether the Exception Clause to the timeliness 

requirement of [Section] 9545 PCRA Amendments (42 

Pa.C.S.A. § 9545(b)(1)[)] is equivalent to the Martinez v. 

Ryan’s [132 S.Ct. 1309 (2012)], procedural default 

“Cause” law?
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Appellant’s Brief at 3.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 

(Pa. Super. 2001).

Before addressing the claims raised by Appellant in his pro se brief, we 

must first determine whether the PCRA court properly determined that 

Appellant’s third PCRA petition was untimely.

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation 

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor 

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction, 

we simply do not have the legal authority to address the substantive claims” 

raised in an untimely petition. Id.
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Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

invoking one of these statutory exceptions must “be filed within sixty days of 

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to 

the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).

This Court provided the following calculations regarding the finality of 

Appellant’s sentence when considering the timeliness of Appellant’s second 

PCRA petition:

[P]ursuant to Section 9545, [Appellant] was required to 

file a PCRA petition within one year of the date his 
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judgment of sentence became final. Instantly, Appellant’s 

judgment of sentence became final 60 days after [January 

22, 1988], when our Supreme Court denied allowance of 

appeal and the time allowed for filing a petition for writ of 

certiorari with the United States Supreme Court expired. 

See: 42 Pa.C.S. § 9545(b)(3); Rule 20.1, Rules of the 

United States Supreme Court (effective August 1, 1984).

Johnson, supra, unpublished memorandum at 3.

Therefore, in order to be timely, Appellant had to file his PCRA petition 

no later than March 28, 1989. He did not file his third petition until over 

twenty-three years later. Thus, it is patently untimely unless Appellant has 

satisfied his burden of pleading and proving that one of the enumerated 

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 

(Pa. 1999).

Appellant has failed to prove the applicability of any of the exceptions 

to the PCRA’s time restrictions. The PCRA court addressed Appellant’s 

unsuccessful attempt to meet this burden:

[Appellant] claimed that his trial and PCRA counsel were 

ineffective, and attempted to invoke the newly-recognized 

constitutional right exception enumerated at 42 Pa.C.S. § 

9545(b)(1)(iii). This exception requires that a petitioner 

plead and prove the existence of a constitutional right 

recognized after the expiration of the PCRA’s one-year 

time bar []. 

In support of his argument, [Appellant] relies on a 

recent U.S. Supreme Court case, Martinez v. Ryan, 132 

S.Ct. 1309 (2012). The Martinez case recognized that for 

purposes of federal habeas corpus relief, “[i]nadequate 

assistance of counsel at initial-review collateral 

proceedings may establish cause for a prisoner’s 

procedural default of a claim of ineffective assistance of 

trial counsel.” Martinez, supra, at 1315, [Appellant’s] 

reliance on Martinez is misplaced, however, because that 
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case was applicable to federal habeas corpus claims, not 

state post-conviction proceedings. As the Pennsylvania 

Superior Court has explicitly stated: “While Martinez

represents a significant development in federal habeas 

corpus law, it is of no moment with respect to the way 

Pennsylvania courts apply the plain language of the time 

bar set forth in section 9545(B)(1) of the PCRA.” 

Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. 

Super. 2013).

PCRA Court Opinion, 2/23/15, at 3-4.

Our review of the record amply supports the PCRA court’s conclusion 

that it lacked jurisdiction to consider Appellant’s third PCRA petition. Within 

his pro se brief, while Appellant asserts in his statement of questions 

involved that the PCRA’s timeliness requirements are “equivalent” to the 

“default ‘Cause’ law” of Martinez, he provides no supporting argument, and 

this Court in Saunders found otherwise. Additionally, although Appellant 

asserts that the PCRA court “erred when it failed to adjudicate” his claim of 

governmental interference, as noted above, we previously affirmed the PCRA 

court’s rejection of this claim when concluding that Appellant’s second PCRA 

petition was untimely. See Johnson, supra, unpublished memorandum at 

4-5.

In sum, because the PCRA court correctly concluded that it lacked 

jurisdiction to consider Appellant’s third PCRA petition, we affirm the PCRA 

court’s order denying Appellant post-conviction relief.1

____________________________________________

1 Given our disposition, Appellant’s motion to remand the matter for an 

evidentiary hearing is denied.
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Order affirmed. Motion denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015