Michael Eakin

“ In Johnson, the defense theory was the Commonwealth's key witness conspired with the police to give false testimony. After the judgment of sentence was affirmed on direct appeal and the defendant's first PCRA petition was denied on its merits, the defendant filed a second PCRA petition that was untimely. He argued the petition fell within § 9545 (b) (1) (i) - (ii) 's timeliness exceptions because the Commonwealth violated Brady by withholding impeachment evidence that the witness was a drug dealer who colluded with the police. ”

“ Appellant argues Johnson is distinguishable because there, the alleged new facts either were known to defense counsel at trial or could have been easily uncovered through sources available to the defense. He contends there was no way he could have known of the "facts" that White and Durham confided their perjuries to Williams and Pate until the latter two came forward long after trial. The Commonwealth counters that Lark is dispositive, and the one-year time-bar for filing the current petition was not tolled by the pending appeal of the second petition, because the second petition was untimely ”

“ Because Pate's testimony concerned an out-of-court statement by Durham relied upon for its truth, it was hearsay. See Pa.R.E. 801 (c) (hearsay is statement, other than one made by declarant while testifying at trial, offered in evidence [A1270] to prove truth of matter asserted) . Appellant contends Durham's statement to Pate was a statement against interest and is admissible under the hearsay exception in Pa.R.E. 804 (b) (3) . However, for this exception to apply, the declarant must be unavailable as a witness, see Pa.R.E. 804 (b) , and appellant offers no proof Durham is not available. ”