Opinion
1361 WDA 2023 432 WDA 2024 J-A22013-24
10-22-2024
COMMONWEALTH OF PENNSYLVANIA v. DARYL JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. DARRYL J. JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered October 26, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003779-1993
Appeal from the PCRA Order Entered October 24, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004979-1993
BEFORE: MURRAY, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM
MURRAY, J.
In these consolidated appeals, Darryl J. Johnson (Appellant) appeals, pro se, from the orders dismissing as untimely his fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The trial court summarized the underlying factual history:
On March 10, 1993, [Appellant, accompanied by his co-conspirator, Methino Bey, forcibly entered the residence of Mr. Marcus Gould [(the victim)], and during a fight between these three participants, [the victim] was killed. Among the evidence introduced at trial[] was a confession given by [Appellant] admitting his guilt. Additionally, a palm print lifted from the scene of the crime matched that of the right palm of [Appellant]. Finally, [Appellant] took the stand in his own defense and admitted that he entered the victim's house intending to assault the victim and to intimidate the victim into not going to the police for [Appellant's] having earlier broken into the victim's home. [Appellant] also admitted during his testimony that he struck the victim with an iron bar and stabbed the victim with a knife at least twice.Trial Court Opinion, 2/23/96, at 1-2 (footnote added; citations omitted).
Appellant was 19 years old at the time of the incident. See N.T., 10/11/94, at 17.
On October 11, 1994, following a non-jury trial, the trial court convicted Appellant of second-degree murder, burglary, and conspiracy to commit burglary at two docket numbers: CP-02-CR-0003779-1993 (No. 3779) and CP-02-CR-0004979-1993 (No. 4979). On December 9, 1994, the trial court sentenced Appellant to an aggregate term of life in prison. Appellant, pro se, filed a post-sentence motion alleging numerous errors, which the trial court denied on May 8, 1995. Appellant timely appealed. This Court affirmed his judgments of sentence. Commonwealth v. Johnson, 694 A.2d 1119 (Pa. Super. 1997) (unpublished memorandum). Appellant filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on October 27, 1997. Commonwealth v. Johnson, 704 A.2d 635 (Pa. 1997). Appellant did not petition the United States Supreme Court for a writ of certiorari.
See 18 Pa.C.S.A. §§ 2501(a), 3502(a), 903(a)(1), respectively.
On October 19, 1998, Appellant, pro se, timely filed his first PCRA petition. The PCRA court appointed counsel to represent Appellant. Following several filings irrelevant to the instant appeal, on July 25, 2000, the PCRA court filed a notice of intent to dismiss Appellant's petition pursuant to Pa.R.Crim.P. 907. Appellant did not file a response. On August 24, 2000, the PCRA court dismissed Appellant's PCRA petition. Appellant timely appealed, and this Court affirmed the PCRA court's order dismissing Appellant's petition. Commonwealth v. Johnson, 1567 WDA 2000 (Pa. Super. 2000) (unpublished memorandum). Appellant did not petition our Supreme Court for allowance of appeal.
In the ensuing years, Appellant filed three additional, untimely, PCRA petitions, each of which the lower court dismissed. We affirmed each of those orders, and the Supreme Court denied Appellant's petitions for allowance of appeal. See Commonwealth v. Johnson, 852 A.2d 1248 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 870 A.2d 320 (Pa. 2004); Commonwealth v. Johnson, 87 A.3d 383 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 87 A.3d 815 (Pa. 2014); Commonwealth v. Johnson, 215 A.3d 611 (Pa. Super. 2019) (unpublished memorandum), appeal denied, 222 A.3d 749 (Pa. 2019).
We concluded the lower court correctly treated Appellant's 2017 "Petition for Writ of Habeas Corpus ad Subjiciendum" as a petition cognizable under the PCRA. See Commonwealth v. Johnson, 215 A.3d 611, 878 WDA 2018 (Pa. Super. 2019) (unpublished memorandum at 1).
Pertinently, in Appellant's third PCRA petition, he alleged his mandatory sentence of life in prison was unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460, 470 (2012) (holding mandatory sentences of life imprisonment for juveniles convicted of homicide violate the Eighth Amendment's prohibition on cruel and unusual punishment). See PCRA Petition, 8/20/12, at 3. Appellant argued,
scientific findings evidence[] that while the seventeen[-]year[-]old brain is fairly developed, it is not until age twenty[-]one that young people begin to experience tremendous gains in emotional maturity, impulse control, and decision making. Those gains continue to occur into early adulthood. Further, studies have shown that this biological process is not typically complete until a person reaches his or her mid-twenties.Id. at 4. However, as Miller was plainly inapplicable due to Appellant's age at the time of the crimes, we rejected Appellant's argument. See Commonwealth v. Johnson, 87 A.3d 383, 108 WDA 2013 (unpublished memorandum at 3); see also id. ("Neither federal nor state case law deems a life sentence without parole unconstitutional for individuals with immature brains." (citation omitted)).
On July 21, 2023, Appellant filed the instant PCRA petition, his fifth. Therein, Appellant challenged the legality of his mandatory life sentence "based on the latest revelations in neurobiological and psychological science…." PCRA Petition, 7/21/23, at 10 (formatting modified). Appellant conceded the untimeliness of his petition, but argued he met the requirements of the newly-discovered fact exception to the PCRA's time-bar, codified at 42 Pa.C.S.A. § 9545(b)(1)(ii). See id. at 5.
Appellant claimed the "fact" he had recently discovered was an expert affidavit, authored by Dr. Laurence Steinberg (Dr. Steinberg) (the affidavit or Dr. Steinberg's affidavit). See id. at 6; see also id., Exhibit A at 4 (Dr. Steinberg opining that "[d]evelopmental science [] does not support the bright-line boundary that is observed in criminal law under which 18-year-olds are categorically deemed to be adults" (footnote omitted)). Appellant claimed he received the affidavit from another prisoner's attorney on May 25, 2023. Id. Appellant emphasized, "Many landmark cases were premised on Dr. Steinberg's research, data, and conclusions[,]" including Miller, supra. Id. at 9-10.
Dr. Steinberg authored the affidavit for a Massachusetts criminal defendant's (Jason Robinson) sentencing claim. See PCRA Petition, 7/21/23, Exhibit A; see also Commonwealth v. Mattis, 224 N.E.3d 410, 417-25 (Mass. 2024) (in Mattis's companion case, the Massachusetts Supreme Court detailing Dr. Steinberg's expert testimony in Robinson's case).
On August 13, 2023, the PCRA court issued a Rule 907 notice of its intent to dismiss Appellant's fifth PCRA petition without a hearing. Appellant filed a response reiterating his invocation of the newly-discovered fact exception to the PCRA's jurisdictional time-bar based on the affidavit. See Response, 8/3/23, at 1. On October 24, 2023, the PCRA court filed an opinion and order dismissing Appellant's petition as untimely. Appellant timely appealed. The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal. The PCRA court adopted its October 24, 2023, opinion as its Pa.R.A.P. 1925(a) opinion.
Appellant's single notice of appeal listed both Nos. 3779 and 4979 (and was docketed in this Court under 1361 WDA 2023), in violation of Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (stating the filing of a single notice of appeal from an order involving more than one docket generally requires the appellate court to quash the appeal). However, in light of Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021) (overruling Walker's mandate requiring quashal), we entered an order on March 22, 2024, directing Appellant to file two amended notices of appeal. We further ordered our Prothonotary (upon receipt of Appellant's amended notices of appeal) to docket No. 3779 at 1361 WDA 2023, and to docket No. 4979 at a new appeal docket number. Appellant complied with our directives, and we sua sponte consolidated the appeals.
Appellant presents the following issue:
Whe[ther] Appellant invoked the newly-discovered fact[] exception to the PCRA time limitation (42 Pa.C.S.A. § 9545(b)(1)(ii)), raising the question of whether newly revealed empirical data in neurobiological and psycho[l]ogical science - by the leading experts in the field, specifically addressing late adolescents (18-20 year olds) - warrants the protections of Article [I], § 13, of the Pennsylvania Constitution, prohibiting cruel punishment, in a way similar to the protection of middle adolescents (14-17 year olds), by the 8th Amendment of the U.S. Constitution already recognized by the Pennsylvania and Supreme Courts, having never addressed the exception invoked and evidence produced, the PCRA court did indeed err in summarily dismissing the petition as untimely[?]Appellant's Brief at 4 (some capitalization modified).
"Appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc) (citation and quotation marks omitted).
Preliminarily, we must address the timeliness of Appellant's PCRA petition. Under the PCRA, any PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final…." 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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." Id. § 9544(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of an untimely petition. Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003).
Instantly, Appellant's judgment of sentence became final in January 1998, when the time for filing a petition for writ of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13 (a petition for certiorari must be filed within 90 days of denial of discretionary review). As Appellant filed the instant PCRA petition more than 20 years later, his petition is facially untimely.
"However, a petitioner may overcome the PCRA's time-bar if he pleads and proves one of the statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)." Commonwealth v. Reeves, 296 A.3d 1228, 1231 (Pa. Super. 2023) (some citations omitted). One exception is 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…." 42 Pa.C.S.A. § 9545(b)(1)(ii). "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." Commonwealth v. Balestier-Marrero, 314 A.3d 549, 554 (Pa. Super. 2024) (citation omitted). Further, "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. Lopez, 249 A.3d 993, 999 (Pa. 2021) (quotation marks and citation omitted; emphasis in original). "[I]t is the petitioner's burden to plead and prove that one of the exceptions applies[.]" Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citation omitted). Finally, a petition invoking the newly-discovered fact exception, "shall be filed within one year of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).
Appellant argues Dr. Steinberg's affidavit constitutes a newly-discovered fact excepting Appellant's untimely filing from the PCRA's jurisdictional time-bar. See Appellant's Brief at 17. Appellant represents he did not have knowledge of, or access to, Dr. Steinberg's affidavit until May 25, 2023. See id. at 19-20 (citing Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) ("[T]he presumption that information which is of public record cannot be deemed 'unknown' for purposes of subsection 9545(b)(i)(ii) does not apply to pro se prisoner petitioners." (emphasis in original))).
Appellant contends the "empirical data … contained in Dr. [] Steinberg's affidavit" was utilized by the Massachusetts Supreme Court in concluding, in Massachusetts, "that sentencing an 'emerging adult' aged 18, 19, 20, to life without parole is every bit a violation of the state constitution as when such a sentence is imposed on a juvenile." Id. at 17. Appellant continues:
[T]he same expert [(Dr. Steinberg)] that provided the social and psychological science on which [the] Miller[], [supra,] decision was based, has concluded definitively that the same transient characteristics of youth that make it cruel (and unusual) to give middle adolescents mandatory life sentences, exist in late adolescents. And for that reason[,] the same constitutional protections should shield them as well. …
The new facts that form the basis of Appellant's PCRA petition were unknown to him, as they did not exist until a short while before he obtained them. And Appellant could not have acquired them any sooner.Id. at 30-31.
The record belies Appellant's assertion that he was unaware of the information contained in the affidavit. In the affidavit, after outlining decades of research, Dr. Steinberg summarized his opinion concerning the psychological immaturity of individuals beyond their teenage years:
Extensive studies demonstrate that important neurobiological development is ongoing throughout the teenage years and continues into the early 20s. As a result of neurobiological
immaturity, young people, even those past the age of majority, continue to demonstrate difficulties in exercising self-restraint, controlling impulses, considering future consequences, making decisions independently from their peers, and resisting the coercive influence of others. Heightened susceptibility to emotionally[-]laden and socially[-]charged situations renders adolescents more vulnerable to the influence of others, and in such situations young people are even less able to consider and weigh the risks and consequences of a chosen course of action. Many of the same immaturities that characterize the brains of individuals younger than 18, and that have been found to mitigate their criminal culpability, are characteristic of the brains of individuals between 18 and 21.
Criminal acts committed by adolescents, even those past the age of majority, are best understood in light of their neurobiological and psychological immaturity. For this reason, it is inappropriate to assign the same degree of culpability to criminal acts committed at this age to that which would be assigned to the behavior of a fully mature and responsible adult.PCRA Petition, 7/21/23, Exhibit A at 13-14 (numbering omitted; emphasis in original).
Dr. Steinberg's opinion is consistent with the argument Appellant presented in his third PCRA petition more than ten years ago. Therein, Appellant demonstrated a thorough knowledge of the research forming the basis of Dr. Steinberg's opinion. See PCRA Petition, 8/20/12, at 4 (stating "scientific findings" show that "it is not until age twenty[-]one that young people begin to experience tremendous gains in emotional maturity, impulse control, and decision making"); id. at 5 (stating "a person's biological development process is not complete until that person reaches his mid-twenties"); id. at 6 (arguing Appellant "had not reached the age at which his cognitive development could be considered complete by today's scientific standards").
The appellate brief Appellant filed in support of his appeal from the order dismissing his third PCRA petition further evidences Appellant's extensive knowledge of the research underpinning the opinion set forth in Dr. Steinberg's affidavit.
Our decision in Commonwealth v. Smallwood, 155 A.3d 1054 (Pa. Super. 2017), is instructive. In Smallwood, we considered whether an expert's affidavit satisfied the newly-discovered fact exception to the PCRA's time-bar. In 1973, the trial court sentenced Smallwood to life imprisonment for murder and arson. See Smallwood, 155 A.3d at 1057. In 1999, Smallwood watched a television program featuring an arson expert who "explained the advances that had been made in the field of fire investigation …." Id. Smallwood immediately attempted to secure the assistance of post-conviction counsel and an arson expert. See id. at 1061. In 2014, after years of speaking with attorneys and arson experts, Smallwood obtained an affidavit from Dr. Jason Sutula (Dr. Sutula), who opined that the arson investigation conducted in Smallwood's case was "fundamentally unreliable in light of what is now known about fire investigations." Id. at 1062. Smallwood filed a PCRA petition, which the lower court granted. See id. at 1057.
The Smallwood Court determined that while Dr. Sutula's affidavit did contain new facts, Smallwood failed to establish "that these 'facts' could not have been ascertained prior to 2014 with the exercise of due diligence." Id. at 1063-64. The Court explained, "The methodology upon which Dr. Sutula relied has been in the public domain since 1992, and Smallwood learned of it in 1999; thus, it had been available and discoverable for many years prior the filing of Smallwood's petition." Id. at 1067 (citations omitted).
Dr. Sutula's affidavit discussing the use of the scientific method over a dozen years after Smallwood became aware of it does nothing more than introduce facts previously known but now presented through a newly discovered source-Dr. Sutula. If we were to accept Smallwood's position that Dr. Sutula's affidavit constitutes the "new fact" to trigger the timeliness exception, petitioners could endlessly file petitions by producing "new facts" through new sources.Id. at 1069 (emphasis added). As a result, the Smallwood Court concluded that Smallwood failed to satisfy the newly-discovered fact exception to the PCRA's time-bar. See id. at 1071.
Upon review of the record and foregoing authority, Appellant failed to establish that the affidavit (or the research upon which it relied) constitutes new "facts" of which he was unaware. As in Smallwood, Appellant knew of the research and methodologies employed in his proffered affidavit for more than a decade prior to his filing of the instant PCRA petition. See id. at 1067. Therefore, Appellant did not present a new "fact" in his PCRA petition; he presented a known fact through a new source. See id.; see also Lopez, 249 A.3d at 999. Accordingly, Appellant's newly-discovered fact claim is without merit.
As Appellant failed to satisfy an exception to the PCRA's time-bar, the PCRA court correctly determined it was without jurisdiction to consider Appellant's untimely PCRA petition.
Order affirmed.