J-S04037-26
2026 PA Super 32
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS R. JOHNSON :
:
Appellant : No. 877 EDA 2025
Appeal from the PCRA Order Entered March 20, 2025
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-XX-XXXXXXX-2014
BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.
OPINION BY NEUMAN, J.: FILED FEBRUARY 23, 2026
Appellant, Marcus R. Johnson, appeals pro se from the post-conviction
court’s March 20, 2025 order dismissing, as untimely, his second petition for
relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Appellant argues that he meets the new-retroactive-right exception of
42 Pa.C.S. § 9545(b)(1)(iii) based on the United States Supreme Court’s
decision in Smith v. Arizona, 602 U.S. 779 (2024). After careful review, we
affirm.
The facts of Appellant’s case are not germane to our disposition of his
appeal. We only note that the evidence presented at Appellant’s jury trial
established he shot and killed his girlfriend during an altercation. See PCRA
Court Opinion and Order (PCOO), 3/20/25, at 4 (citation omitted). At trial,
Philadelphia Deputy Medical Examiner Dr. Albert Chu, an expert
in forensic pathology, [testified] the decedent suffered six distinct
gunshot wounds, including two penetrating, fatal wounds to the
back of her head, two non-fatal wounds to the left forearm, a non-fatal wound to the right forearm, and a graze wound to the left
J-S04037-26
shoulder. One penetrating, fatal wound to the back of the
decedent’s head travelled through the victim’s skull and brain
back to front, left to right, and slightly upward, coming to rest
near the decedent’s right ear. The decedent’s other head wound
entered the neck near the base of the skull, fractured the first
cervical vertebra, and was recovered on the right side of the
decedent’s back, near the lower neck. Dr. Chu characterized the
second wound as immediately fatal, as the projectile struck the
part of the spinal cord that controlled the decedent’s breathing
and heartbeat. Each of the decedent’s wounds was consistent
with shots fired while the decedent’s back faced the shooter. Dr.
Chu concluded, to a reasonable degree of medical certainty, that
the manner of death was homicide caused by multiple gunshot
wounds.
Id. (citation omitted).
On June 27, 2016, the jury convicted Appellant of first-degree murder
and possessing an instrument of crime. That same day, the court sentenced
him to life imprisonment, without the possibility of parole, for his murder
conviction. This Court affirmed Appellant’s judgment of sentence on July 13,
2017, and our Supreme Court denied his petition for allowance of appeal on
November 28, 2017. See Commonwealth v. Johnson, 175 A.3d 375 (Pa.
Super. 2017) (unpublished memorandum), appeal denied,
175 A.3d 215 (Pa.
2017).
Appellant thereafter litigated a timely PCRA petition, which was denied.
This Court affirmed on appeal, and our Supreme Court denied his subsequent
petition for allowance of appeal. See Commonwealth v. Johnson, 241 A.3d
368 (Pa. Super. 2020) (unpublished memorandum), appeal denied,
252 A.3d
596 (Pa. 2021).
-2-
J-S04037-26
On November 15, 2024, Appellant filed a second pro se PCRA petition,
which underlies this appeal. Therein, he argued Dr. Chu’s trial testimony was
inadmissible under the United States Supreme Court’s recent decision in
Smith, discussed infra. See PCRA Petition, 11/15/24, at 7-11. Appellant also
maintained Smith satisfies the new-retroactive-right exception of 42 Pa.C.S.
§ 9545(b)(1)(iii), thereby triggering the PCRA court’s jurisdiction to review his
untimely challenge to the admission of Dr. Chu’s testimony. Id. at 4-5.
The PCRA court appointed Appellant counsel on December 2, 2024. On
January 29, 2025, counsel filed a petition to withdraw and ‘no-merit letter’
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley,
550 A.2d 213 (Pa. Super. 1988) (en banc). On
February 13, 2025, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition on the basis that it was untimely and did
not meet a timeliness exception. Appellant filed a pro se response on March
10, 2025. On March 20, 2025, the court issued an order and opinion
dismissing his petition and granting counsel’s petition to withdraw.
Appellant filed a timely pro se notice of appeal. It does not appear the
court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, and the court relied on its March 20, 2025 opinion
in satisfaction of Rule 1925(a). Herein, Appellant raises six issues for our
review:
I. Since 42 Pa.C.S.[] § 9545(b)(1)(iii) is open to the review of
federal claims, and contains no express language limiting a PCRA
court’s ability to review a defendant’s claim that rests on a
-3-
J-S04037-26
Supreme Court decision that announced a new constitutional
principle that is considered an “Old Rule[,”] does the Supremacy
Clause mandate that the court grant the relief that federal law
requires?[] And if so, did the PCRA court err as a matter of law,
and consequently violate Appellant’s due process rights under the
Fourteenth Amendment of the U.S. Constitution, by concluding
that it lacked jurisdiction to review the merits of Appellant’s
Confrontation claim, which asserted a violation of his rights under
the Sixth and Fourteenth Amendments to the U.S. Constitution?
II. Since the retroactive applicability of a constitutional decision of
the United States Supreme Court is a federal question, does the
Supremacy Clause bound PCRA courts to the federal retroactivity
doctrine concerning the constitutional principle announced in
Smith…, where the Smith holding yielded an “Old Rule” which
pursuant to federal law applies retroactively on collateral
review?[] And if so, did the PCRA court err as a matter of law,
and consequently violate Appellant’s due process rights under the
Fourteenth Amendment of the U.S. Constitution by concluding
that the constitutional principle announced in Smith was not
retroactive?
III. Did the PCRA court err as a matter of law, and consequently
violate Appellant’s due process rights under the Fourteenth
Amendment of the United States Constitution by applying an
ambiguous interpretation to … the plain language of [section]
9545(b)(1)(iii) to bar review of Appellant’s federal claim, which
under federal law, would be reviewable?
IV. Since this appeal raises partial, rather than facial questions,
concerning a potential constitutional conclict [sic] involving the
[PCRA] court’s interpretation and subsequent application of
[section] 9545(b)(1)(iii) to Appellant’s claim resting on federal
law, does this case require a remand to the PCRA court in order
to further develop the legal argument Appellant is seeking to
present for this Courts [sic] consideration?[] Particularly where
the foundation for this challenge was set forth in Appellant’s
objections to the PCRA court’s [Rule] 907 notice, and, although
the court ensured that the objections were made part of the
record, the court did not address the legal substance contained
therein when is [sic] issued its order and opinion on March 20,
2025?
V. Did the PCRA court err as a matter of fact and law in finding
that Appellant’s claim was waived? And, in just consideration of
-4-
J-S04037-26
the procedural history involving the instant claim, as well as the
then state of the law regarding Rule 907 and PCRA counsel’s
ineffectiveness[,] would upholding the PCRA court’s waiver
conclusion result in a miscarriage of justice?
VI. Did the PCRA court err as a matter of fact, law, and legal
precedent, and consequently violate Appellant’s rights under the
Sixth and Fourteenth Amendments of the U.S. Constitution, by
concluding that the confrontation violation that occurred at his
trial was a harmless error, and therefore Appellant was not
entitled to relief pursuant to the U.S. Supreme Court[’s] holding
in Smith…?
Appellant’s Brief at 3-4 (unnecessary capitalization and some internal
quotation marks omitted).
This Court’s standard of review regarding an order denying 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.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett,
930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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:
-5-
J-S04037-26
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, section 9545(b)(2) requires any
petition attempting to invoke one of these exceptions “be filed within one year
of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on February 26,
2018, ninety days after our Supreme Court denied his petition for allowance
of appeal and the time expired for him to file a petition for writ of certiorari
with the United States Supreme Court. See U.S. Sup. Ct. R. 13(1) (stating
“a petition for a writ of certiorari to review a judgment in any case … is timely
when it is filed with the Clerk of this Court within 90 days after entry of the
judgment”). Therefore, Appellant had until February 26, 2019, to file a timely
petition, making his petition filed in November of 2024 untimely. Appellant
must prove he meets one of the exceptions to the timeliness requirements set
forth in 42 Pa.C.S. § 9545(b) for this Court to have jurisdiction.
Appellant argues he meets the new-retroactive-right exception of
section 9545(b)(1)(iii) based on Smith, and that Dr. Chu’s testimony was
-6-
J-S04037-26
inadmissible under the Smith decision. See PCRA Petition at 4; Appellant’s
Brief at 10. Notably, Appellant seems to concede that Smith did not create
a new constitutional right. See Appellant’s Brief at 11 (acknowledging the
Smith Court’s statement that its “holding … follows from all this Court has
held about the Confrontation Clause’s application for forensic evidence”)
(quoting Smith, 602 U.S. at 802). He argues, however, that Smith satisfies
the timeliness exception of section 9545(b)(1)(iii) because the Court
recognized a new constitutional principle stemming from an “old rule” of
constitutional law, and then applied that principle to a new factual scenario.
Id. (emphasis added; unnecessary capitalization omitted); see also id. at 13
(“[T]he PCRA [c]ourt’s reading of [section] 9545(b)(1)(iii) is unreasonably
attenuated, and thus contravenes federal law[, a]s it conflicts with the
Supreme Court’s authority to ‘recognize’ when, and under what factual
circumstances[,] a particular provision is to apply.”). Appellant also claims “it
is axiomatic that the federal retroactivity doctrine necessitates that retroactive
effect be given to the Smith holding in collateral proceedings.” Id. at 18
(internal quotation marks omitted) (citing United States v. Johnson,
457
U.S. 537, 549 (1982) (“[W]hen a decision of this Court merely has applied
settled precedents to new and different factual situations, no real question has
arisen as to whether the later decision should apply retrospectively. In such
cases, it has been a foregone conclusion that the rule of the later case applies
in earlier cases….”)).
-7-
J-S04037-26
Appellant’s argument is unconvincing. Our Supreme Court has
explained:
With respect to the timeliness exception set forth in [s]ection
9545(b)(1)(iii) of the PCRA, our Court has held that the provision
has two requirements:
First, it provides that the right asserted is a constitutional
right that was recognized by the Supreme Court of the
United States or this [C]ourt after the time provided in this
section. Second, it provides that the right “has been held”
by “that court” to apply retroactively. Thus, a petitioner
must prove that there is a “new” constitutional right and
that the right “has been held” by that court to apply
retroactively. The language “has been held” is in the past
tense. These words mean that the action has already
occurred, i.e., “that court” has already held the new
constitutional right to be retroactive to cases on collateral
review. By employing the past tense in writing this
provision, the legislature clearly intended that the right was
already recognized at the time the petition was filed.
[Commonwealth v.] Abdul-Salaam, 812 A.2d [497,] … 501[]
[(Pa. 2002)] (specifically holding that “the language ‘has been
held’ means that the ruling on retroactivity of the new
constitutional law must have been made prior to the filing of the
petition for collateral review” and “that a retroactivity
determination must exist at the time that the petition is filed”).
Additionally, in [Commonwealth v.] Reid, [235 A.3d 1124 (Pa.
2020),] this Court reaffirmed Abdul-Salaam and further
explained:
The plain language [of section 9545(b)(1)(iii) of the PCRA]
makes clear that, when dealing with an otherwise untimely
PCRA petition, our collateral review courts are only “open”
to a claim that a new constitutional right applies when the
right “has been held by that court to apply retroactively.”
42 Pa.C.S. § 9545(b)(1)(iii). In other words, because the
“has been held” language “means that the ruling on
retroactivity of the new constitutional law must have been
made prior to the filing of the petition for collateral
review[,]” Abdul-Salaam, 812 A.2d at 501, our state
collateral courts are, in fact, not “open” to a claim that a
-8-
J-S04037-26
new constitutional right applies, unless the right has already
been held to apply retroactively.
Reid, 235 A.3d at 1160-61 (emphasis in original).
Commonwealth v. Taylor, 283 A.3d 178, 187 (Pa. 2022) (emphasis in
original; some capitalization omitted).1
In this case, we begin by assessing whether Smith recognized a new
constitutional right. Prior to Smith, in Crawford v. Washington, 541 U.S.
36 (2004), the United States Supreme Court held that the Confrontation
Clause bars the admission of testimonial hearsay unless the declarant is
unavailable to testify at trial and the defendant had a prior opportunity to
cross-examine them.
Id. at 59, 68. After Crawford, the Court “made clear
that the Confrontation Clause applies to forensic reports” through the issuance
of several decisions. Smith,
602 U.S. at 785. First, in Melendez-Diaz v.
Massachusetts,
557 U.S. 305 (2009), the Court held that ‘certificates of
____________________________________________
1 We briefly address Appellant’s argument that the PCRA court erred by
interpreting section 9545(b)(1)(iii) as requiring a new constitutional right,
where section 9545(b)(1)(iii) “never utilizes the word ‘[n]ew.’” Appellant’s
Brief at 20-21; see also Appellant’s Reply Brief at 9-13. He also argues that
a “federal constitutional right can never be ‘new’ per se, because the
Constitution does not change from year to year.” Appellant’s Brief at 24
(unnecessary capitalization and citation omitted). Appellant further contends
the statute’s use of the word “recognized” is interchangeable with
“interpretation” and, therefore, any decision interpreting a constitutional right
should be construed as satisfying the timeliness exception. See id. at 25-28;
Appellant’s Reply Brief at 13. However, as set forth supra, our Supreme Court
has interpreted section 9545(b)(1)(iii) and declared the requirements for
satisfying that exception in cases such as Abdul-Salaam, Reid, and Taylor.
To the extent Appellant asks this Court to adopt a different interpretation, we
cannot do so, as we are bound by the decisions of our Supreme Court. See
Commonwealth v. Friday,
90 A.2d 856, 859 (Pa. Super. 1952).
-9-
J-S04037-26
analysis,’ which stated that lab tests had identified a substance seized from
the defendant as cocaine, were testimonial. Id. at 310-11. Thus, “[a]bsent
a showing that the analysts [who prepared the certificates] were unavailable
to testify at trial and that [Melendez-Diaz] had a prior opportunity to cross-
examine them, [he] was entitled to be confronted with the analysts at trial.”
Id. at 311 (emphasis in original; internal quotation marks omitted) (citing
Crawford, 541 U.S. at 54). Second, the Court decided Bullcoming v. New
Mexico,
564 U.S. 647 (2011), which relied on Melendez-Diaz to “hold that
a State could not introduce one lab analyst’s written findings through the
testimony of another.” Smith,
602 U.S. at 786.
Third, the Court issued Williams v. Illinois, 567 U.S. 50 (2012).
There,
state police sent vaginal swabs from a rape victim known as L.J.
to a private lab for DNA testing. When the lab sent back a DNA
profile, a state analyst checked it against the police department’s
database and found that it matched the profile of prior arrestee …
Williams. The State charged Williams with the rape, and he went
to trial. The prosecution chose not to bring the private lab analyst
to the stand. Instead, it called Sandra Lambatos, the state analyst
who had searched the police database and found the DNA match.
Lambatos had no first-hand knowledge of how the private lab had
produced its results; she did not even know whether those results
actually came from L.J.’s vaginal swabs (as opposed to some other
sample). But she spoke repeatedly about comparing Williams’s
DNA to the DNA “found in [L.J.’s] vaginal swabs.” [Williams, 567
U.S.] at 61, 71 … (plurality opinion); see id.[] at 124 … (KAGAN,
J., dissenting). So in addition to describing how she discovered a
match, Lambatos became the conduit for what a different analyst
had reported—that a particular DNA profile came from L.J.’s
vaginal swabs. Williams objected, at trial and later: He thought
that, just as in Bullcoming, crucial evidence had been admitted
- 10 -
J-S04037-26
through a surrogate expert, thus violating his right of
confrontation.
Smith, 602 U.S. at 786-87. After the Illinois Supreme Court rejected
Williams’s claim, the United States Supreme Court “granted Williams’s petition
for certiorari, but failed to produce a majority opinion.”
Id. at 788. Instead,
[f]our Members of the Court approved the Illinois Supreme Court’s
approach to “basis evidence,” and agreed that Lambatos’s
recitation of the private lab’s findings served “the legitimate
nonhearsay purpose of illuminating the expert’s thought process.”
Williams, 567 U.S.[] at 78 … (plurality opinion). But the
remaining five Members rejected that view. Those five stated, in
two opinions, that basis evidence is generally introduced for its
truth, and was so introduced at Williams’s trial. Justice THOMAS
explained that “the purportedly limited reason for [the basis]
testimony — to aid the factfinder in evaluating the expert’s opinion
— necessarily entail[ed] an evaluation of whether [that] testimony
[was] true”: “[T]he validity of Lambatos’[s] opinion ultimately
turned on the truth of [the private lab analyst’s] statements.”
Id.[] at 106[] n. 1 … (opinion concurring in judgment). A dissent
for another four Justices agreed: “[T]he utility of the [private
analyst’s] statement that Lambatos repeated logically depended
on its truth.” Id.[] at 132 (opinion of KAGAN, J.). And the State
could not avoid that conclusion by “rely[ing] on [Lambatos’s]
status as an expert.” Id.[] at 126…. Those shared views might
have made for a happy majority, except that a different
Confrontation Clause issue intruded. Justice THOMAS thought
that the private lab report was not testimonial because it lacked
sufficient formality, so affirmed the Illinois Supreme Court on that
alternative ground. The bottom line was that Williams lost, even
though five Members of this Court rejected the state court’s “not
for the truth” reasoning.
Id. (some formatting altered).
A dozen years after Williams, the Supreme Court issued Smith,
attempting to correct the confusion the Williams decision had “sow[ed] … in
courts across the country about the Confrontation Clause’s application to
expert opinion testimony.” Id. at 789 (citation and quotation marks omitted).
- 11 -
J-S04037-26
In Smith, an analyst who tested drugs found in Smith’s possession did not
testify at trial. Id. at 789-90. Instead, a substitute expert with no prior
connection to the case reviewed the lab reports and notes drafted by the non-
testifying analyst, told the jury what those records conveyed about the
analyst’s testing of the items, and offered an “independent opinion” of the
chemical nature of the substances.
Id. at 791. After Smith was convicted,
he appealed, arguing the State’s use of a “substitute expert … violated his
Confrontation Clause rights.”
Id. (internal quotation marks and citations
omitted). The Arizona Court of Appeals rejected Smith’s argument, concluding
that “an expert may testify to the substance of a non-testifying expert’s
analysis, if such evidence forms the basis of the testifying expert’s opinion[,]”
because the “underlying facts are … used only to show the basis for the in-
court witness’s opinion and not to prove their truth.”
Id. at 792 (cleaned up).
However, the United States Supreme Court disagreed. The Smith Court
instead held “[i]f an expert for the prosecution conveys an out-of-court
statement in support of his opinion, and the statement supports that opinion
only if true, then the statement has been offered for the truth of what it
asserts.” Id. at 795. If the out-of-court statement is also testimonial — a
question not answered in Smith — then it is barred by the Confrontation
Clause unless the declarant is unavailable and the defendant had a prior
- 12 -
J-S04037-26
opportunity to cross-examine them. See id. at 784.2 At the close of its
decision, the Smith Court summarized that its holding
follows from all this Court has held about the Confrontation
Clause’s application to forensic evidence. A State may not
introduce the testimonial out-of-court statements of a forensic
analyst at trial, unless she is unavailable and the defendant has
had a prior chance to cross-examine her. See Crawford, 541
U.S.[] at 68…; Melendez-Diaz, 557 U.S.[] at 311…. Neither may
the State introduce those statements through a surrogate analyst
who did not participate in their creation. See Bullcoming, 564
U.S.[] at 663…. And nothing changes if the surrogate — as in this
case — presents the out-of-court statements as the basis for his
expert opinion. Those statements, as we have explained, come
into evidence for their truth — because only if true can they
provide a reason to credit the substitute expert. So a defendant
has the right to cross-examine the person who made them.
Id. at 802-03 (some formatting altered).
Based on the plain language of Smith, we conclude the Court did not
recognize a new constitutional right in that decision. Instead, the Court was
correcting the confusion created by Williams and clarifying how the
Confrontation Clause principles set forth in Crawford, Melendez-Diaz, and
Bullcoming apply when the prosecution seeks to introduce an out-of-court
statement as the basis for an expert opinion. See Commonwealth v.
Douglas, 346 A.3d 825, 836 (Pa. Super. 2025) (“In Smith, the Court
addressed the application of Confrontation Clause ‘principles to a case in
which an expert witness restate[d] an absent lab analyst’s factual assertions
____________________________________________
2 The Smith Court remanded for the Arizona Court of Appeals to address the
issue of whether the non-testifying analyst’s report was testimonial. Id. at
803.
- 13 -
J-S04037-26
to support his own opinion testimony.’”) (quoting Smith, 602 U.S. at 783)
(emphasis added). Although Appellant asks us to find section 9545(b)(1)(iii)
satisfied where a decision, such as Smith, simply applies a previously
recognized constitutional right to a new factual scenario, our Supreme Court
has not interpreted section 9545(b)(1)(iii) this broadly. See Abdul-Salaam,
supra; Reid, supra; Taylor, supra. We are bound by our Supreme Court’s
decisions. See
Friday, supra.
Moreover, even if Smith did announce a new right, Appellant cannot
satisfy section 9545(b)(1)(iii) because that right has not “already been held
to apply retroactively.” Taylor, 283 A.3d at 187 (citation omitted). Nothing
in the Smith decision indicates the Court intended it to apply retroactively to
cases pending on collateral review. Additionally, no decision has been issued
since Smith holding that it applies retroactively. While Appellant presents
various arguments as to why the Smith decision should be deemed to be
retroactive, see Appellant’s Brief at 18-20, the timeliness exception can only
be met if Smith was held to be retroactive prior to the filing of Appellant’s
petition. See Abdul-Salaam, 812 A.2d at 501 (stating that “the ruling on
retroactivity of the new constitutional law must have been made prior to the
filing of the petition for collateral review”). 3 Accordingly, Appellant has not
met the retroactivity requirement of section 9545(b)(1)(iii).
____________________________________________
3 In any event, we note that Appellant’s reliance on Johnson would not
convince us that Smith applies retroactively. Not only has that case been
(Footnote Continued Next Page)
- 14 -
J-S04037-26
In sum, Appellant has not demonstrated that Smith recognized a new
constitutional right, or that it has been held to apply retroactively to cases on
collateral review. Because Appellant’s petition is untimely and does not meet
section 9545(b)(1)(iii), we do not have jurisdiction to review his argument
that Dr. Chu’s testimony was inadmissible under Smith.4
Order affirmed.
____________________________________________
abrogated by Griffith v. Kentucky, 479 U.S. 314 (1987), but Johnson’s
holding is also inapplicable. That decision was limited to the retroactive
application of the Fourth Amendment to cases where the defendant’s
judgment of sentence had not yet become final. See Johnson,
457 U.S. at
562 (holding “a decision of this Court construing the Fourth Amendment is to
be applied retroactively to all convictions that were not yet final at the
time the decision was rendered”) (emphasis added);
id. (stating it
“express[ed] no view on the retroactive application of decisions construing
any constitutional provision other than the Fourth Amendment[,]” and that it
was not “address[ing] the retroactive reach of our Fourth Amendment to those
cases that still may raise Fourth Amendment issues on collateral attack”).
Here, Appellant’s case does not involve a Fourth Amendment claim, and his
judgment of sentence became final years ago. Accordingly, even if Johnson
remained good law, it would not apply.
4 We also do not address Appellant’s claims that the PCRA court erred by
concluding, in an alternative analysis, that he waived his challenge to the
admission of Dr. Chu’s testimony, and that the admission of Dr. Chu’s
testimony was harmless error even if not waived. See Appellant’s Brief at 30-
37; id. at 37-47. See also PCOO at 9 (concluding Appellant’s claim was
waived because although he raised a Confrontation Clause challenge to Dr.
Chu’s testimony in his pretrial motion in limine, he did not raise that issue on
direct appeal or in his first PCRA petition) (citing 42 Pa.C.S. § 9543(a)(3)
(directing that to be eligible for relief, a petitioner must demonstrate his claim
has not been previously litigated or waived)); id. at 9-10 (concluding the
admission of Dr. Chu’s testimony, even if erroneous, would be harmless error,
as there was overwhelming evidence of Appellant’s guilt). Because we lack
jurisdiction, we reach no decision on the validity of the court’s alternative
analysis in these regards, and do not assess Appellant’s challenges thereto.
- 15 -
J-S04037-26
Date: 2/23/2026
- 16 -
