J-A29037-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

AARON JOHNSON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 16 EDA 2017

Appeal from the PCRA Order November 18, 2016

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0704361-1993

BEFORE: LAZARUS, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 04, 2017

Aaron Johnson (Appellant) appeals from the order dismissing his petition 

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

This Court offered the following relevant factual summary and 

procedural history.

On October 5, 1994, a jury convicted Appellant of two counts of 

robbery, two counts of aggravated assault, criminal conspiracy, 

and carrying firearms on a public street or in a public place in 

Philadelphia. On November 29, 1994, the trial court sentenced 

Appellant to an aggregate term of twenty-five to fifty years’

imprisonment. Appellant filed a post-sentence motion on 

December 7, 1994, which was denied on April 14, 1995, by 

operation of law. Appellant did not pursue direct review. Between 

1996 and 2007, Appellant filed three PCRA petitions, which were 

all denied and later affirmed. On April 11, 2011, Appellant filed [a 

fourth] pro se serial PCRA petition, which the PCRA court denied 

as untimely [filed] on March 14, 2012, after issuing notice of its 
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intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. 

Commonwealth v. Johnson, 97 A.3d 797 (Pa. Super. 2014) (unpublished 

memorandum at 1).1 

Appellant filed a notice of appeal to this Court, and we concluded that 

his April 11, 2011 PCRA petition was untimely filed, and that he failed to prove 

an exception to the timeliness requirements of the PCRA pursuant to 42 

Pa.C.S. § 9545(b)(1). Thus, we affirmed the dismissal of that petition. Id.

On April 9, 2015, Appellant filed the PCRA petition at issue in this case. 

Therein, Appellant asserted his petition was timely filed pursuant to 42 Pa.C.S. 

§ 9545(b)(1)(ii), which provides that “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.” Appellant’s purported newlydiscovered fact was his co-defendant’s May 16, 2012 testimony in Appellant’s 

homicide jury trial. Additionally, Appellant asserted that his sentence was 

illegal pursuant to Alleyne v. United States, 570 U.S. 99 (2013). 

The PCRA court reviewed the petition, and concluded that Appellant 

failed to prove applicability of the time-bar exceptions. Thus, the court issued 

 

1 On June 30, 2009, the victim whom Appellant shot in the neck during the 

underlying incident died as a result of that gunshot wound. Appellant was 

charged with criminal homicide at CP-51-CR-0003744-2010, and was 

convicted of first-degree murder following a jury trial on May 14-17, 2012. 

This Court affirmed Appellant’s judgment of sentence in that case. 

Commonwealth v. Johnson, 97 A.3d 799 (Pa. Super. 2014) (unpublished 

memorandum). 
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a notice of its intent to dismiss the petition without a hearing. Appellant 

responded, and on November 18, 2016, the PCRA court dismissed Appellant’s 

petition. Appellant timely filed a notice of appeal.2 

Before we reach the arguments Appellant sets forth on appeal, we must 

determine whether Appellant’s petition was timely filed. “The PCRA’s time 

restrictions are jurisdictional in nature.” Commonwealth v. Chester, 895 

A.2d 520, 522 (Pa. 2006). “Thus, ‘[i]f a PCRA petition is untimely, neither 

this Court nor the trial court has jurisdiction over the petition. Without 

jurisdiction, we simply do not have the legal authority to address the 

substantive claims.’” Id. (quoting Commonwealth v. Lambert, 884 A.2d 

848, 851 (Pa. 2005)). “The question of whether a petition is timely raises a 

question of law. Where the petitioner raises questions of law, our standard of 

review is de novo and our scope of review plenary.” Commonwealth v. 

Brown, 141 A.3d 491, 499 (Pa. Super. 2016).

Under the PCRA, all petitions must be filed within one year of the date 

that the petitioner’s judgment of sentence became final, unless one of three 

statutory exceptions applies. 42 Pa.C.S. § 9545(b)(1); Chester, 895 A.2d at

522. For purposes of the PCRA, a judgment becomes final at the conclusion 

of direct review. 42 Pa.C.S. § 9545(b)(3). 

 

2 Appellant was not ordered to file a statement of errors complained of on 

appeal, but the PCRA court did file an opinion pursuant to Pa.R.A.P. 1925(a).
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The PCRA sets forth the following time requirements for filing a PCRA 

petition.

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a 

second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final, 

unless the petition alleges and the petitioner proves 

that:

(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.

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date 

the claim could have been presented.

42 Pa.C.S. § 9545.

The newly-discovered facts exception

has two components, which must be alleged and proved. Namely, 

the petitioner must establish that: 1) the facts upon which the 

claim was predicated were unknown and 2) could not have been 
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ascertained by the exercise of due diligence. If the petitioner 

alleges and proves these two components, then the PCRA court 

has jurisdiction over the claim under this subsection.

Brown, 141 A.3d at 500 (quoting Commonwealth v. Bennett, 930 A.2d 

1264, 1272 (Pa. 2007) (internal quotation marks and citations omitted; 

emphasis removed)). 

Appellant’s purported newly-discovered fact does not satisfy the 

aforementioned requirements. Because Appellant’s co-defendant testified at 

his first trial in 1994, where Appellant was present during his co-defendant’s 

testimony, it is not evident that this allegedly new information “could not have 

been ascertained by the exercise of due diligence.” Id. Moreover, even 

assuming that this new testimony constituted a newly-discovered fact, 

Appellant became aware of it on May 16, 2012, the day that his co-defendant 

testified in his 2012 homicide trial. Appellant’s instant PCRA petition, filed on 

April 9, 2015, was not filed within 60 days of that date. 

Appellant’s attempted invocation of the retroactive-application-of-aconstitutional-right exception to his untimely-filed PCRA petition based on 

Alleyne also fails. See Commonwealth v. Washington, 142 A.3d 810, 820 

(Pa. 2016) (“Alleyne does not apply retroactively to cases pending on 

collateral review”).3

 

3 Appellant also requests reinstatement of his appellate rights because he was 

allegedly abandoned by all prior counsel. This claim does not overcome the 

(footnote continued on next page)
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Thus, we conclude that the PCRA court’s dismissal of Appellant’s PCRA 

petition was proper and, accordingly, we affirm the PCRA court’s November 

18, 2016 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/2017

 

(footnote continued)

untimeliness of Appellant’s petition. Appellant has failed to establish due 

diligence or that the fact of the alleged abandonment was unknown to him, as 

he previously raised the same claim in prior PCRA petitions. Furthermore, 

even if Appellant’s petition were timely-filed, he is not eligible for relief as

Appellant raised this claim in prior PCRA petitions, and this Court addressed 

those claims. Commonwealth v. Johnson, 815 A.2d 1127 (Pa. Super. 

2002) (unpublished memorandum at 5-6).