J-S36029-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DALE M. JOHNSON 

 Appellant No. 1858 WDA 2014 

Appeal from the PCRA Order October 29, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0016792-2008 

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.* 

MEMORANDUM BY JENKINS, J.: FILED JULY 16, 2015 

 Appellant Dale Johnson appeals from the order of the Allegheny 

County Court of Common Pleas dismissing as untimely his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. We affirm. 

 In a previous disposition in this case, the PCRA court summarized the 

relevant facts as follows: 

On August 13, 2008, [the victim] was attacked at his 

home. He first heard the sound of his back door crashing 

in. An intruder approached him at great speed, hit him on 

the head and threw him to the floor. The intruder wore a 

white mask and hit him on his head and face with a heavy 

object. A second person was present who the victim did 

not see. The victim heard two voices, one voice was heard 

to say, “Shoot him now.” The victim could not tell which of 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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the intruders uttered the statement. A gun was placed 

into his mouth and the victim heard it click. During the 

incident, the victim’s watch was taken from him. 

Officer Klobucher testified that he was a patrol officer on 

duty and in full uniform on the night in question. He 

stated that he was dispatched following a call from a 

neighbor that two individuals were attempting to gain 

entry to the victim’s residence. Officer Klobucher was the 

first officer to arrive at the scene, less than a minute and a 

half from the time he was dispatched. Upon arrival, from 

the back of the house, he observed the broken back door, 

looked inside the house, and saw two individuals. They 

were both wearing masks, one mask tan and one mask 

white. Both individuals were making punching and pushing 

motions toward the floor. 

Eventually, the actor wearing the tan mask saw the Officer 

and extended his right arm straight out in front of him with 

his fist clenched. The Officer observed an object in the 

actor’s right hand but could not positively identify the 

object. Believing the object to be a gun, he took cover 

and drew his firearm. When he looked back into the

residence, the masked individuals were no longer in sight. 

In the meantime, backup officers arrived on the scene. 

One suspect was apprehended in the basement. A firearm 

and a white bandana were recovered in the basement. 

The other individual was apprehended in the front of the 

residence. He was wearing a tan mask. That individual 

was identified by the [apprehending] Officer as 

[Appellant]. 

Officer Frisk, upon arrival, positioned himself in front of the 

house and observed a man wearing a tan mask peer out 

the front window between the blinds. Approximately ten 

to fifteen seconds later, a man wearing the same mask 

“burst through the front door.” Officer Frisk yelled for the 

actor to show his hands and get on the ground. Instead of 

complying with that directive, [Appellant] continued 

toward the Officer and the Officer deployed his Taser. 

Officer Frisk identified [Appellant] as the man wearing the 

tan mask who he apprehended leaving the front of the 

house. [Appellant] did not have a valid license to carry a 

firearm. The firearm was tested and returned as operable. 
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Located on [Appellant’s] person, in his right front pants 

pocket, was a gold and silver watch and a set of car keys. 

The watch recovered was consistent with what was 

identified by the victim as his watch. 

PCRA Court Opinion, filed November 22, 2011, at 3-5 (internal citations 

omitted). 

 At trial, Appellant testified that Dale Tansmore and an individual 

Appellant did not know asked him for a ride. N.T. at 107.1 Tansmore 

directed him to the victim’s house, claiming he had to pick up something. 

Id. at 107-08. Appellant waited in the car, while Tansmore and the 

unknown individual exited the car and went between the houses. Id. at 

109. About a minute later, the unknown man ran to the car wearing a tan 

mask. Id. Appellant did not let him in the car, but went to the victim’s 

house, and tried to help the victim. Id. at 110-11. The police then arrived 

and arrested Appellant and Tansmore. Id. at 112. Appellant further 

testified that the police did not find the watch on him and the police 

“obviously found the other man’s mask,” which the officer put to Appellant’s 

face to see if it fit, stuffed it in his pocket, and said “that must be yours.” 

Id. at 113-14. 

 On July 28, 2009, a jury convicted Appellant of aggravated assault 

(serious bodily injury), burglary, robbery (serious bodily injury), aggravated 

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1

 The trial occurred on July 24, 2009, July 27, 2009, and July 28, 2009. The 

transcripts from all trial days are included in one transcript, cited as N.T. 
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assault (deadly weapon), terroristic threats, and unlawful restraint.2 On 

October 22, 2009, the trial court sentenced Appellant to an aggregate term 

of imprisonment of 12 to 24 years, followed by 5 years’ probation. On 

August 31, 2010, this Court affirmed the judgment of sentence, and the 

Pennsylvania Supreme Court denied further review on February 2, 2011. 

See Commonwealth v. Johnson, 11 A.3d 1046 (Pa.Super.2010) 

(unpublished memorandum), appeal denied, 14 A.3d 825 (2011). 

On February 24, 2011, Appellant timely filed a pro se PCRA petition. 

The court appointed counsel, who later filed a “no-merit” letter pursuant to 

Turner/Finley,

3

 and a motion to withdraw. By order dated February 27, 

2011 and filed on April 28, 2011, the PCRA court granted counsel’s motion 

for leave to withdraw and issued notice of its intent to dismiss Appellant’s 

petition without a hearing pursuant to Pennsylvania Rule of Criminal 

Procedure 907. On May 16, 2011, Appellant filed objections to the Rule 907 

notice. On May 25, 2011, the PCRA court dismissed Appellant’s petition. 

Appellant filed a notice of appeal and a concise statement of errors 

complained of on appeal. He then filed an amended concise statement of 

errors complained of on appeal, to which he attached an affidavit from 

____________________________________________ 

2

 18 Pa.C.S. §§ 2702(a)(1), 3502(c)(1), 3701(a)(1), 2702(a)(4), 2706, and 

2901(a)(1). 

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc). 
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Dayon Chambers, the victim’s neighbor, who reported the crime to the 

police.4 On May 4, 2012, this Court affirmed the PCRA court’s dismissal of 

the PCRA petition. See Commonwealth v. Johnson, 50 A.3d 234 

(Pa.Super. 2012) (unpublished memorandum). 

 On January 16, 2013, Appellant filed a second PCRA petition, attaching 

a second affidavit from Chambers.5 On January 18, 2013, the PCRA court 

issued notice of its intent to dismiss the PCRA petition without a hearing. 

Appellant again filed objections to the Rule 907 notice. On January 30, 

2013, the PCRA court dismissed the petition. This Court affirmed. 

Commonwealth v. Johnson, No. 327 WDA 2013 (Pa.Super. filed Aug. 28, 

2013) (unpublished memorandum). 

 On January 8, 2014, Appellant filed the current PCRA petition, his 

third. Appellant attached an affidavit from Robert Randolph to this petition. 

Randolph claimed he was at Chambers’ house with a group of about ten 

people at the time of the incident.6 On January 14, 2014, Appellant filed an 

amended petition, attaching an affidavit from Michael Lynn, who also 

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4

 Amended Concise Statement of Matters Complained of on Appeal Pursuant 

to Pa.R.A.P. 1925(b), at Exh. B (“Chambers Affidavit I”). 

5

 Second Petition for Relief Under the Post Conviction Relief Act, at Affidavit 

(“Chambers Affidavit II”). 

6

 Third Petition for Relief Under The Post-Conviction Relief Act, at Affidavit 

(“Randolph Affidavit”). 
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claimed to have witnessed the incident from Chambers’ house.7 The PCRA 

court appointed counsel, who filed an amended PCRA petition. Appellant 

then received an affidavit from a fourth individual, Melvin Edmunds, and filed 

a motion for leave to amend the PCRA petition, which the PCRA court 

granted. On August 15, 2014, Appellant filed a second amended PCRA 

petition, attaching Edmunds’s affidavit.8 On September 18, 2014, the 

Commonwealth filed an answer to the PCRA petition. On October 7, 2014, 

the PCRA court issued a Rule 907 notice of its intent to dismiss the petition 

without a hearing. Appellant filed a response to this notice. On October 29, 

2014, the PCRA court dismissed Appellant’s third PCRA petition as untimely. 

 On November 12, 2014, Appellant filed a timely notice of appeal. Both 

Appellant and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925. 

 Appellant raises the following issues on appeal: 

1. Was the PCRA Court’s conclusion that exculpatory

witnesses could have been discovered much earlier in the 

exercise of due diligence erroneous as being both 

presumptuous and speculative? 

2. Was the PCRA Court’s conclusion that the evidence 

overwhelmingly supported the conviction, thus rendering 

Appellant's petition “patently frivolous,” erroneous where 

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7

 Amendment to Third Petition for Relief Under the Post-Conviction Relief 

Act, at Affidavit (“Lynn Affidavit”). 

8

 Second Amended Petition for Post-Conviction Relief Under the PCRA, at 

Melvin Edmunds Affidavit (“Edmunds Affidavit”). 
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the PCRA Court considered only the evidence received at 

trial and not Appellant's proffered affidavits? 

Appellant’s Brief at 3. 

Pursuant to Pennsylvania law, “no court has jurisdiction to hear an 

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 

1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 

1157, 1161 (Pa.2003)). The PCRA provides that a petition, “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); accord Monaco, 996 

A.2d at 1079. A judgment is 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). 

Three exceptions to the PCRA’s time-bar exist. The exceptions allow 

for limited circumstances under which a court may excuse the late filing of a 

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The 

late filing of a petition will be excused if a petitioner alleges and proves: 

(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 
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provided in this section and has been held by that court to 

apply retroactively. 

42 Pa.C.S. § 9545(b)(1)(i)-(iii). When invoking a time-bar exception, the 

petition must “be filed within 60 days of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2). 

 Appellant’s judgment of sentence became final on May 3, 2011, 90 

days after the Supreme Court of Pennsylvania denied his petition for 

allowance of appeal on February 2, 2011. See U.S. Sup. Ct. R. 13. He had 

one year from that date, until May 3, 2012, to file a timely PCRA petition. 

Therefore, his current petition, filed on January 8, 2014, is untimely and we 

lack jurisdiction unless he satisfies one of the three PCRA time-bar 

exceptions. 

 Appellant maintains his petition qualifies for the newly-discovered 

evidence time-bar exception based on the affidavits from Randolph, Lynn, 

and Edmunds, which state: the individuals were at a barbeque at the 

residence of the victim’s next-door neighbor; the individuals witnessed the 

incident; and Appellant was attempting to assist the victim. Appellant’s Brief 

at 11-20; Randolph Affidavit; Lynn Affidavit; Edmunds Affidavit. Appellant 

does not base his newly-discovered evidence argument on Chambers’ 

affidavits, which he possessed during prior PCRA proceedings. Appellant’s 

Brief at 12. 

 This Court has explained the newly-discovered evidence exception as 

follows: 
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The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the 

facts upon which he based his petition and could not have 

learned those facts earlier by the exercise of due diligence. 

Due diligence demands that the petitioner take reasonable 

steps to protect his own interests. A petitioner must 

explain why he could not have learned the new fact(s) 

earlier with the exercise of due diligence. This rule is 

strictly enforced. Additionally, the focus of this exception 

“is on the newly discovered facts, not on a newly 

discovered or newly willing source for previously known 

facts.” 

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.2015) (internal 

citations omitted). 

 Appellant knew of Chambers’ existence at the time of trial, as the 

police report notes that Chambers was the reporting party. Further, 

Appellant previously submitted two affidavits from Chambers. Appellant 

maintains the Randolph, Lynn, and Edmunds Affidavits are newly-discovered 

evidence because he and his family members should not be expected to 

have asked Chambers whether any other individuals were at his house at 

the time of the incident. He relies on Commonwealth v. Medina, 92 A.3d 

1210 (Pa.Super.2014) (en banc) and Commonwealth v. Davis, 86 A.3d 

883 (Pa.Super.2014). 

 In Medina, the defendant submitted an affidavit wherein a witness, 

who was eleven years old at the time of trial, recanted his trial testimony. 

92 A.3d at 1213. The witness claimed he and his brother testified falsely 

because the investigating detectives threatened them. Id. This Court found 

the affidavits satisfied the newly-discovered evidence exception, reasoning: 
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[T]he credible evidence at the PCRA hearing showed 

[Appellee] had no information that a detective coerced and 

threatened the boys causing Hector [Toro] to lie until 

Hector [Toro] disclosed it at Graterford fourteen years 

after the trial. There was no evidence that Hector had 

recanted earlier or at the time of trial other than telling the 

unidentified detective that he had not seen anything 

incriminating. There was no evidence that, in the 

intervening years since trial, [the appellee] learned of the 

detective’s coercion and threats or knew that Hector [Toro] 

told anyone about lying at trial. The mere fact that [the 

appellee] knew Hector [Toro] was falsely testifying to 

having seen him do something he had not done would not 

provide [the appellee] sufficient information as to why 

Hector [Toro] was lying. The detective’s actions were kept 

secret from prosecutors, the defense team and the trial 

court. 

Id. at 1217. 

 Similarly, in Davis, this Court found the defendant satisfied the newlydiscovered evidence exception. In Davis, two witnesses testified at trial 

that, although arrested in this or other cases, they did not have an 

agreement that they would receive favorable treatment if they testified 

against the defendant. 86 A.3d at 890. At the PCRA stage, the defendant 

submitted an affidavit from one witness stating he was promised favorable 

treatment in exchange for his trial testimony. Id. at 888-89. The defendant 

then procured the sentencing transcripts of both witnesses, which confirmed 

that the witnesses received favorable treatment in exchange for their 

testimony against the defendant. Id. This Court found the defendant 

satisfied the newly-discovered evidence rule, reasoning: 

At no point during the testimony of either witness did the 

Commonwealth interject to clarify that a deal or leniency 

was offered to either Watson and/or Diggs. Therefore, 
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Appellant had no reason to seek out transcripts of those 

witnesses’ sentencing hearings in unrelated cases to look 

for evidence of such deals. To conclude otherwise would 

suggest that Appellant should have assumed the 

Commonwealth’s witnesses were committing perjury, and 

the Commonwealth was improperly permitting them to do 

so. Due diligence does not require a defendant to make 

such unreasonable assumptions. See [Commonwealth v. 

Selenski, 994 A.2d 1083, 1089 (Pa.2010)] (defining the 

due diligence required by the Commonwealth in 

Pa.R.Crim.P. 600 issues as “fact-specific, to be determined 

case-by-case; it does not require perfect vigilance and 

punctilious care, but merely a showing that the 

Commonwealth has put forth a reasonable effort”). 

Instead, Appellant’s efforts were adequately diligent under 

the circumstances of this case. After receiving Watson’s 

affidavit indicating that Watson had received lenient 

treatment by the Commonwealth in exchange for his 

testimony, Appellant acquired the transcripts of Watson’s 

sentencing proceeding. Appellant also acquired the 

transcripts of Diggs’ sentencing proceeding, evincing that 

Appellant acted diligently in suspecting that the 

Commonwealth may have also concealed a deal offered to 

Diggs. Such efforts by Appellant amounted to due 

diligence in ascertaining this claim. 

Id. at 890-91 (emphasis deleted). 

 Here, the PCRA court concluded: 

Chambers’ affidavits establish his availability as a witness 

as far back as 2011. Had Appellant exercised due 

diligence (e.g. asking Chambers what he was doing prior 

to observing the incident, who else would have observed 

it, etc.) the existence of other potential witnesses would 

have been easily discoverable. The witnesses were 

available for Appellant’s prior PCRA petitions but for his 

own lack of due diligence in finding them. As Appellant 

failed to exercise due diligence in obtaining his alleged 

[newly]-discovered evidence, this [c]ourt did not err in 

dismissing his third PCRA petition without a hearing. 

Pa.R.A.P. 1925(a) Opinion, 3/10/2015, at 5. 
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The PCRA court did not abuse its discretion. Unlike Medina and 

Davis, Appellant does not claim the Commonwealth coerced false testimony 

from any witness or permitted false testimony to go uncorrected. Chambers’ 

affidavit claims the police said they would contact him and the remaining 

three affiants claim they spoke with the police. However, unlike Davis, 

there is no support for these claims. Further, as the PCRA court found, 

Appellant did not act diligently. He has known of Chambers’ existence since 

prior to trial and has known Chambers’ alleged testimony would support 

Appellant’s testimony that he was attempting to aid the victim as of 2011, 

the filing of Mr. Chambers’ first affidavit. Appellant would have discovered 

the existence of the alleged additional witnesses had he asked Chambers 

whether any other witnesses existed.9 Finally, unlike Davis and Medina, 

____________________________________________ 

9

 Appellant notes that there is no explanation as to why Chambers did not 

inform anyone that he had guests at his residence at the time of the incident 

and argues we should not presume Chambers would have revealed the 

existence of his alleged guests had he been asked whether others witnessed 

the incident. Appellant’s Brief at 16, 16 n.5. The burden is on Appellant to 

establish he acted diligently and, therefore, the burden is on Appellant to 

prove Chambers would not have revealed this information had he been 

asked. See 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. Bennett, 930 

A.2d 1264, 1270 (Pa.2007) (petition must allege and prove the facts were 

“unknown” to him and could not have been ascertained through the exercise 

of due diligence). Appellant procured two other affidavits from Chambers 

and offers no explanation as to why he could not have procured a third 

affidavit to explain Chambers’ failure to mention the 10-12 people that were 

at his house at the time of the incident. 
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the police officers arrested Appellant as he was exiting the victim’s 

residence, at which time he had the victim’s watch and a mask.10

 Order affirmed.11 The Reply Brief of Appellant is stricken as untimely 

filed without good cause shown pursuant to Pa.R.A.P. 2185. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/16/2015 

____________________________________________ 

10 The affidavits conveniently claim the police planted these objects on 

Appellant. 

11 Because we find the PCRA court did not err in dismissing the PCRA petition 

as untimely for failure to qualify for the newly-discovered evidence 

exception, we need not address the second issue raised on appeal, whether 

the PCRA court erred in finding the petition patently frivolous.