Com. v. Burton, S. , 121 A.3d 1063 ( 2015 )

J-E04008-14
2015 Pa. Super. 176
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN LAMAR BURTON,
Appellant No. 1459 WDA 2013
Appeal from the PCRA Order August 27, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CR-02-CR-0004017-1993
and CP-02-CR-0004276-1993
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, SHOGAN, MUNDY, OLSON AND OTT, JJ.
OPINION BY BENDER, P.J.E.: FILED AUGUST 25, 2015
Shawn Lamar Burton (Appellant) appeals pro se from the order
entered August 27, 2013, denying as untimely his petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We conclude that the record before us is insufficient to determine whether
Appellant’s petition satisfies the after-discovered facts exception to the one-
year time requirement of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii). In so
doing, we clarify the due diligence required of untimely petitioners and
recognize a limited exception to the “public records” rule, which presumes
that petitioners have access to information available in the public domain.
Accordingly, we vacate the PCRA court’s order and remand for an
evidentiary hearing.
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In September 1993, a jury convicted Appellant of first-degree murder
and conspiracy in connection with the strangulation death of Seth Floyd in
the Allegheny County Jail. Thereafter, the court imposed the mandatory
sentence of life imprisonment. Appellant’s co-defendant, Melvin Goodwine,
was convicted of conspiracy but acquitted of the murder charge.
Appellant timely appealed from the judgment of sentence, and this
Court affirmed. See Commonwealth v. Burton, 688 A.2d 1225 (Pa.
Super. 1996) (unpublished memorandum). On August 15, 1997, the
Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Burton, 700 A.2d 437 (Pa. 1997). Appellant did not
petition the United States Supreme Court for writ of certiorari.
In August 1998, Appellant filed pro se his first PCRA petition. Counsel
was appointed but subsequently withdrew due to a disagreement with
Appellant. Appellant proceeded pro se. Thereafter, the PCRA court
dismissed his petition in April 2000. New counsel was appointed and
effectuated an appeal, which was dismissed in November 2001 for failure to
file a brief. However, counsel successfully sought reinstatement of
Appellant’s appellate rights nunc pro tunc and timely appealed.
On review, the PCRA court’s failure to conduct an on-the-record
colloquy to determine whether Appellant properly waived his right to his first
PCRA counsel resulted in remand by this Court and further proceedings
below not relevant to this appeal. Eventually, the PCRA court again denied
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Appellant’s first petition in December 2005. This Court affirmed, see
Commonwealth v. Burton, 924 A.2d 688 (Pa. 2007) (unpublished
memorandum), and the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. See Commonwealth v. Burton, 936 A.2d
39 (Pa. 2007).
On May 30, 2013, Appellant purportedly received a letter from the
Pennsylvania Innocence Project (dated May 23, 2013). Enclosed with the
letter were copies of (1) a motion to expunge criminal record filed by co-
defendant Melvin Goodwine, in July 2009, and (2) a court opinion thereafter
denying the motion. In his motion to expunge, Goodwine averred that (1)
he (Goodwine) killed Seth Floyd in self-defense, (2) he was advised not to
use this defense at trial, and (3) as a result, an innocent man went to jail for
a crime that he committed. Based upon these court records, the Innocence
Project letter suggested that Appellant pursue collateral relief.
On July 11, 2013, Appellant filed pro se his second PCRA petition. On
August 6, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent
to dismiss Appellant’s petition without a hearing. On August 27, 2013, it
dismissed the petition. Appellant responded untimely to the court’s Rule 907
notice on September 9, 2013. Nevertheless, Appellant timely appealed and
filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued
an opinion.
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In July 2014, a divided panel of this Court vacated the PCRA Court’s
order and remanded for an evidentiary hearing. The Commonwealth filed a
timely application for reargument en banc. We granted the Commonwealth’s
application and withdrew the July panel memorandum. See Order,
09/08/2014.
Appellant raises the following issues:
[1.] Whether the PCRA court erred in denying [Appellant’s] post-
conviction petition as untimely filed when [Appellant] established
that his [after-discovered facts] claim[] [was] within the [plain
language of the timeliness exception set forth at] 42 Pa.C.S.A. §
9545(b)(1)(ii) and section 9545(b)(2)?
[2.] Whether [Appellant] is entitled to a new trial, or remand for
an evidentiary hearing based upon the personal documents of
Melvin Goodwine[‘s] admitting that the petitioner did not
participate in the crimes charged in this case, which [after-
discovered fact] was provided to [Appellant] by Pennsylvania
Innocence Project?
[3.] Whether the district attorney’s [] failure to disclose
exculpatory evidence to [Appellant] proving his innocence[]
violates the prosecutor’s obligation under the Fourteenth
Amendment’s Due Process Clause?
Appellant’s Substitute Brief at v-vi.1
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1
Before the original panel assigned to this case, Appellant specifically
claimed both the government interference exception, see 42 Pa.C.S. §
9545(b)(1)(i), and the after-discovered facts exception, see 42 Pa.C.S. §
9545(b)(1)(ii). Appellant’s Original Brief at 10. Appellant’s current
argument fails to address the government interference exception. See
generally Appellant’s Substitute Brief. Thus, it appears that Appellant has
abandoned this particular claim before the en banc panel, and we will not
address it.
(Footnote Continued Next Page)
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We review an order denying a collateral relief under the PCRA to
determine whether evidence of record supports the findings of the PCRA
court and whether its legal conclusions are free of error. Commonwealth
v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “The PCRA court's credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court's legal
conclusions.” Id. (quoting Commonwealth v. Roney, 79 A.3d 595, 603
(2013)).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 08/27/2013, at 1 (citing in support
Pa.R.Crim.P. 907). There is no absolute right to an evidentiary hearing.
See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).
On appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine
_______________________
(Footnote Continued)
In his second and third issues, Appellant asserts substantive claims for
collateral relief, claiming newly discovered, exculpatory evidence, improperly
withheld by the district attorney’s office. See Appellant’s Substitute Brief at
4-10. In light of our disposition, and the procedural posture of this case, we
do not reach these claims. See Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa. 2008) (recognizing potential congruence between a Brady
claim and Section 9545(b)(1)(i), but noting their distinct requirements); see
also Commonwealth v. Bennett, 930 A.2d 1264, 1271-72 (Pa. 2007)
(admonishing this Court to avoid imparting substantive requirements on the
analysis of timeliness exceptions).
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issues of material fact and in denying relief without an evidentiary hearing.”
Id.
Under the PCRA, all petitions seeking collateral relief must be filed
within one year of the date the judgment of sentence becomes final. See
Bennett, 930 A.2d at 1267; 42 Pa.C.S. § 9545(b)(1). There are three
statutory exceptions:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions “shall be filed within 60 days 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 November 13,
1997, ninety days after the Pennsylvania Supreme Court denied Appellant’s
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petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing
that judgment of sentence becomes final at the conclusion of direct review
or the expiration of the time for seeking the review); U.S.Sup.Ct.R. 13
(requiring the filing of a petition for writ of certiorari within 90 days)
(effective May 1, 1997). Appellant had until November 13, 1998, to file a
timely PCRA petition. Thus, his July 2013 petition was patently untimely.
Appellant acknowledges that his petition was untimely but asserts that
he qualifies for the “after-discovered facts” exception to the timeliness
requirement. In order to qualify, a petitioner must establish that (1) he did
not know the facts upon which he based his petition, and (2) he could not
have learned those facts earlier with the exercise of due diligence. See 42
Pa.C.S. § 9545(b)(1)(ii). According to Appellant, his reliance upon the
contents of Goodwine’s motion to expunge meets these requirements. We
agree.
Fundamentally, at issue here is the appropriate level of diligence
required of an untimely PCRA petitioner. Section (b)(1)(ii) requires “due
diligence,” without explanation or definition of the term. This omission
poses little difficulty, however, as Pennsylvania courts have interpreted
consistently the concept of due diligence in different contexts.
In 1893, for example, reviewing a financial dispute in which the
plaintiff failed to collect on a note past due for seven months, the
Pennsylvania Supreme Court affirmed a lower court ruling, leaving the
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question of due diligence to the fact finder. Tissue v. Hanna, 27 A. 1104,
1105 (Pa. 1893). The Court noted the following:
A contract [of guaranty] creates only a contingent liability; and it
becomes absolute only by due and unsuccessful diligence to
obtain satisfaction from the principal, or by circumstances that
excuse diligence. … But every case is to be judged by its
circumstances.
Id. (emphasis added).
More recently, this Court evaluated the efforts of police officers
attempting to locate and apprehend a criminal defendant for speedy trial
purposes. Commonwealth v. Hinton, 409 A.2d 54, 57 (Pa. Super. 1979).
We concluded:
It seems clear that the test [for due diligence] is not a venture
into hindsight reasoning …. The matter of availability and due
diligence must be judged by what was done by the authorities
rather than what was not done. The standard of due diligence
demands only reasonable efforts.
Id. (some emphasis added).
In the specific context of the PCRA, our state appellate courts have
been more circumspect. Apart from citing the statutory language itself, no
published decision provided an expositive statement of the diligence required
to satisfy Section 9545(b)(1)(ii) until Commonwealth v. Williams, 35 A.3d
44 (Pa. Super. 2011). In Williams, this Court rejected a petitioner’s
attempt to embed a request for DNA testing in an untimely PCRA petition
and clarified that “[d]ue diligence demands that the petitioner take
reasonable steps to protect his own interests.” Id. at 53 (citing
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Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001))
(emphasis added).2
Thereafter, we offered further guidance in Commonwealth v. Davis,
86 A.3d 883 (Pa. Super. 2014). In Davis, a jury convicted the petitioner of
robbery and first-degree murder in 1972, based in part on the testimony of
two witnesses. Id. at 885-86. Decades later, in 2008, the petitioner filed a
PCRA petition, in which he claimed to have discovered facts establishing that
both witnesses had testified pursuant to an undisclosed agreement with the
Commonwealth and that one of the witnesses had committed perjury. Id.
at 886. Notably, during the petitioner’s trial, both witnesses had denied any
such agreement. Id. at 885-86.
The PCRA court denied relief, holding that the petitioner’s facts were
publicly available in several court transcripts “via an exercise of due
diligence,” and therefore, did not satisfy the requirements of Section
9545(b)(1)(ii). Id. at 889 (quoting the PCRA court opinion). This Court
disagreed. We observed that the petitioner’s efforts were triggered upon
receipt of affidavits signed by one of the witnesses. Id. Regarding the
undisclosed agreements with the Commonwealth, we reasoned as follows:
At no point during the testimony of either witness did the
Commonwealth interject to clarify that a deal or leniency was
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2
In Carr, we did not define expressly the requirements of due diligence but
rather examined the facts surrounding the appellant’s efforts to pursue relief
and concluded the efforts were insufficient. See Carr, 768 A.2d at 1168.
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offered to either[.] Therefore, [petitioner] 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 [petitioner] 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,
606 Pa. 51, 994 A.2d 1083, 1089 (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, [petitioner’s] efforts were adequately diligent under the
circumstances of this case.
Id. at 890-91 (emphasis added).
We also addressed the petitioner’s investigation into the allegedly
perjured testimony. The source of this fact was limited to one of the
affidavits received by the petitioner. Id. at 889. In it, the affiant stated
that he had revealed his perjury to a trial court in an unrelated case. The
transcripts from this unrelated case were unavailable. Id. at 890.
Nevertheless, the PCRA court determined that the previous, public disclosure
of this perjury precluded petitioner from relying on it. Id. Again, we
disagreed, concluding that the petitioner acted with “sufficient diligence” and
holding that “[i]t would be unreasonable to expect a pro se prisoner such as
[petitioner] to do that which a trial court could not [i.e., locate the
transcript].” Id. at 891 (emphasis added).
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Key in Davis was the petitioner’s receipt of an affidavit informing him
that at least one of the witnesses against him had secretly secured a
sentencing agreement with the Commonwealth in exchange for his
testimony. The affidavit served to trigger the petitioner’s investigation. This
particular circumstance was significant because the facts underlying the
petitioner’s claim were contained in a different or unrelated case. As we
concluded, absent this trigger, “[petitioner] had no reason to seek out” facts
in support of a claim for collateral relief. Id. at 890. Of course, there were
additional factors, consistently relevant to any due diligence analysis,
including the timing of the availability of the new facts and petitioner’s pro
se status. Id. at 891.
Finally, in Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super.
2014) (en banc), the petitioner was convicted of murder in 1992, based on
the testimony of two brothers, children at the time. Id. at 1213. In 2006,
one of the witnesses recanted and claimed that a detective had coerced his
testimony. Id. at 1216-17. Based on this recantation, the petitioner sought
collateral relief. Following an evidentiary hearing, the PCRA court found the
testimony of the petitioner and the witness credible and concluded that the
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petitioner had established the after-discovered facts exception. Id. at
1216.3
On appeal, the Commonwealth argued that the petitioner’s complete
failure to contact the witness during the fifteen-year period following his
arrest was insufficient to establish due diligence. Id. We disagreed:
[The petitioner] had no way of knowing what the detective said
to the Commonwealth’s key child witnesses or that his threats
were the reason the boys lied at trial. In addition, reasonable
investigation could not have revealed it since even at the PCRA
evidentiary hearing the Commonwealth’s prosecutors claimed
they had not known of the detective’s conduct. If the
Commonwealth’s prosecutors did not know, [the petitioner] and
his counsel had no reason to look for this evidence and probably
could not have found it if they had.
Id. (adopting the analysis of the PCRA court). Thus, we concluded that the
petitioner’s efforts were reasonable under the circumstances. Id. at 1217.
There can be no reasonable dispute that the due diligence inquiry is
fact-sensitive and dependent upon the circumstances presented.4 Moreover,
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3
The credibility determination of the PCRA court was essential to our
subsequent affirmance. Id. at 1214 (“The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”)
(emphasis added) (quoting Commonwealth v. Spotz, 18 A.3d 244, 259
(Pa. 2011)).
4
Incidentally, Black’s Law Dictionary defines due diligence in the following
manner:
Such a measure of prudence, activity, or assiduity, as is properly to be
expected from, and ordinarily exercised by, a reasonable and prudent
man under the particular circumstances; not measured by any
(Footnote Continued Next Page)
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although the Pennsylvania Supreme Court has yet to adopt expressly the
Selenski definition of due diligence, applied in Davis, in the context of the
PCRA, the Court has done so implicitly. See Commonwealth v. Edmiston,
65 A.3d 339, 348 (Pa. 2013) (quoting Selenski in the context of the
appellant’s argument, but ultimately rejecting a second PCRA petition as
untimely, concluding that certain photographic evidence at issue was
available at the time of trial). Thus, we hold that due diligence requires
neither perfect vigilance nor punctilious care, but rather it requires
reasonable efforts by a petitioner, based on the particular circumstances, to
uncover facts that may support a claim for collateral relief. Selenski;
Medina; Davis; Williams.
We shall strictly enforce this requirement. See, e.g.,
Commonwealth v. Fahy, 959 A.2d 312, 315 (Pa. 2008). Our enforcement
is a function of both the current, jurisdictional understanding of the PCRA
timeliness requirement and the mandatory language of Section 9545(b)(1).
See Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa. 1999) (baldly
asserting that the PCRA timeliness requirements are “a matter of
_______________________
(Footnote Continued)
absolute standard, but depending on the relative facts of the special
case.
THE LAW DICTIONARY, FEATURING BLACK’S LAW DICTIONARY FREE ONLINE
LEGAL DICTIONARY (2d ed.), http://thelawdictionary.org/due-diligence (last
visited Apr. 23, 2015) (emphasis in original).
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jurisdiction”); see also 42 Pa.C.S. § 9545(b)(1) (“Any petition under this
subchapter … shall be filed within one year ...”) (emphasis added).5
Nevertheless, strict enforcement does not elevate the level of diligence
required of a petitioner but merely describes the vigorous manner of judicial
review.
Also relevant to our disposition is the nature of the after-discovered
facts relied upon by Appellant. Appellant claims that he is innocent of
murder and conspiracy, citing in support the contents of a motion to
expunge criminal record filed by Appellant’s co-defendant, Melvin Goodwine,
in July 2009. At first glance it would appear that Appellant’s claim runs afoul
of Pennsylvania Supreme Court precedent holding that publicly available
information cannot predicate a timeliness exception, beyond the 60-day
grace period defined in Section 9545(b)(2). See, e.g., Commonwealth v.
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5
The jurisdictional interpretation of the timeliness requirement is long-
standing. However, it is not without controversy. See, e.g.,
Commonwealth v. Brown, 943 A.2d 264, 272-73 (Pa. 2008) (Baer, J.,
dissenting) (suggesting that this interpretation sacrifices “fundamental rights
at the altar of finality”). Moreover, this Court has not always held to the
“strict enforcement” standard when the jurisdiction afforded us by the PCRA
is at issue. For example, it is well settled that the prisoner mailbox rule
applies to PCRA petitions. See, e.g., Commonwealth v. Chambers, 35
A.3d 34, 39-40 (Pa. Super. 2011) (applying the “prisoner mailbox rule” to a
PCRA petition); Commonwealth v. Hopfer, 965 A.2d 270, 272 n.2 (Pa.
Super. 2009) (same); Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa.
Super. 1998) (same).
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Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (“This Court has found matters of
public record are not unknown.”).6
However, the rule is not absolute. It must adhere to the statutory
language of Section 9545. The requirement is that Section 9545(b)(1)(ii)
facts are “unknown to the petitioner.” 42 Pa.C.S. § 9545(b)(1)(ii)
(emphasis added). This imparts a subjective element into the due diligence
standard, easily accommodated by a reasonableness analysis, but not
accurately reflected by a bright line rule. An irrebuttable presumption that
public information cannot be “unknown” would disregard the standard of
diligence required of untimely petitioners.
The general rule is reasonable when we may conclude that the
petitioner retains access to public information, such as when a petitioner is
represented by counsel. See, e.g., Taylor, 67 A.3d at 1247 (stating that
each of the petitioner’s three petitions for collateral relief were prepared by
counsel); Chester, 895 A.2d at 522 (stating that petitioner was represented
by counsel during pendency of his second petition); Commonwealth v.
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6
See also Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006)
(rejecting as untimely a counseled PCRA petition alleging trial counsel
conflict of interest when counsel was arrested for driving under the influence
within days of making his appearance on behalf of petitioner);
Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000) (suggesting in
dicta that certain statistics underpinning a study critical of the Philadelphia
criminal justice system “were of public record [prior to petitioner’s first,
counseled PCRA petition] and cannot be said to have been ‘unknown’ to
[the] [a]ppellant”).
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Whitney, 817 A.2d 423, 424 (Pa. 2003) (noting that petitioner had the
benefit of counsel). In such cases, public records should be presumptively
knowable. However, a pro se petitioner does not have access to information
otherwise readily available to the public. That is elementary: A PCRA
petitioner is most often incarcerated, and thus, no longer a member of the
public. See 42 Pa.C.S. § 9543(a)(1). Without counsel’s providing a conduit
to publicly available information, a presumption of access is cynical, and the
strength of the general rule falters. Thus, the Supreme Court has expressly
recognized the importance of access to the public information.
Recall in Bennett, a petitioner was denied collateral relief. Bennett,
930 A.2d at 1266. The petitioner timely appealed, but appointed PCRA
counsel failed to file a brief, and the appeal was dismissed by court order.
Id. Thereafter, upon discovering counsel’s abandonment, the petitioner pro
se filed a second petition. Id. The PCRA court granted relief, reinstating the
petitioner’s appellate rights nunc pro tunc. Id. at 1267. This Court quashed
the petitioner’s appeal, concluding that the second petition was untimely.
Id. The Supreme Court disagreed, concluding that counsel’s abandonment
of the petitioner was a fact, unknown to the petitioner, despite its presence
in the public record (i.e., the court order dismissing the petitioner’s appeal
was a matter of public record). Id. at 1275.
Addressing the public records rule, the Supreme Court reasoned as
follows:
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While the dissenting opinion [advocating strict application of the
public records rule] is attractive in its simplicity, it does not give
due consideration to the circumstances the instant case raises.
The August 14th order [dismissing the petitioner’s first PCRA
appeal] was a matter of “public record” only in the broadest
sense. Such orders are not sent directly to the prisoner.
Rather, counsel is sent the notice on the assumption that
counsel will inform his client of the court's action. In a case such
as the instant one, it is illogical to believe that a counsel that
abandons his or her client for a requested appeal will inform his
client that his case has been dismissed because of his own
failures. More importantly, in light of the fact that counsel
abandoned Appellant, we know of no other way in which a
prisoner could access the “public record.”13 Rather, we believe
this situation is sufficiently distinct from the situation in Chester
[see supra], since in this case, the matter of “public record”
does not appear to have been within Appellant's access.14
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13
Of course, the PCRA court can examine this matter on
remand.
14
Chester involved a “public record” extant at the time of
trial during which counsel was actively representing his
client. Clearly, that is distinct from a situation in which
counsel has abandoned his client and yet counsel is the
only way the client would have to access the information.
__________
Bennett, 930 A.2d at 1266 (emphasis added).
Viewing our analysis in Davis, supra, through the lens of Bennett, the
contours of an “access” exception to the public records rule come into better
focus. If our Supreme Court has recognized expressly that, without the
benefit of counsel, we cannot presume a petitioner has access to information
contained in his own public, criminal docket, then surely it cannot be that we
presume a pro se petitioner’s access to public information contained
elsewhere. Thus, we hold that the presumption of access to information
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available in the public domain does not apply where the untimely PCRA
petitioner is pro se.
Applying the law in this case, and without the benefit of an evidentiary
record developed below, Appellant’s diligence may be sufficient. After
receiving a letter from the Innocence Project, advising him of the contents of
Goodwine’s motion to expunge, Appellant promptly filed a PCRA petition.
Similar to the affidavit significant to our ruling in Davis, here the letter
received by Appellant triggered his claim for collateral relief.
The timing of Goodwine’s motion is also important, as it occurred more
than ten years after Appellant’s judgment of sentence became final. The law
does not require hyper-diligence, in which would-be petitioners incessantly
scour the entirety of the public domain – that would be a Sisyphean task,
neither realistic nor reasonable. After such an extended period, it would not
be reasonable to expect Appellant to investigate public records with
sufficient regularity to ascertain quickly whether Goodwine may have
disclosed potentially exculpatory information concerning Appellant’s case. In
this regard, the contents of Goodwine’s motion are informative. According
to the motion, Goodwine was advised to forego a claim of self-defense at
trial. Instead, he chose not to testify. Goodwine’s silence at trial (and his
acquittal of the murder charges) eliminated any reasonable expectation that
he would, thereafter, publicly acknowledge his guilt. Thus, Appellant had no
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reason to seek out facts in support of a claim for collateral relief. Medina;
Davis.
Finally, Appellant is pro se. Accordingly, we will not presume he has
access to public information. Absent evidence demonstrating Appellant’s
access to the contents of Goodwine’s criminal docket, the public records rule
does not apply.7 Bennett; Davis.
In its opinion, the PCRA court suggested that it was unclear when
Appellant really learned of Goodwine’s filings, suggesting it did not find
credible Appellant’s assertion that, unsolicited, the Innocence Project
approached Appellant in May 2013. See PCRA Court Opinion, 11/04/2013,
at 5; Commonwealth’s Substituted Brief at 19 n.14. The PCRA court cannot
make a credibility finding in a vacuum. Similarly flawed is the PCRA court’s
suggestion that Appellant must have known previously that Goodwine
murdered the victim, because Appellant was convicted also of conspiracy.
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7
We reject the learned Dissent’s suggestion that we have adopted a “status-
based approach” to assessing due diligence. To be clear: An untimely
petitioner’s pro se status merely eliminates the presumption of his access to
public information. The Commonwealth is free, of course, to adduce
evidence sufficient to establish such access. When it does, a PCRA court can
engage in a real, fact-based inquiry. A finding of access may well preclude a
petitioner from invoking the after-discovered facts exception to the PCRA
timeliness requirement (just as the general public records rule works where
the petitioner is represented by counsel).
Further, we make no assumptions regarding Appellant’s access to
Goodwine’s criminal docket. We merely reject the PCRA court’s presumption
of access and, more generally, establish a framework within which
Appellant’s diligence may be assessed properly.
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See PCRA Court Opinion at 4-5. The court’s reasoning is not persuasive in
light of Appellant’s claim of innocence regarding both murder and
conspiracy. Without a factual record developed by the PCRA court, it is
impossible to conclude whether Appellant previously knew such facts. Thus,
these findings were premature. Nevertheless, the PCRA court may consider
these issues further following an evidentiary hearing. See, e.g., Bennett,
930 A.2d at 1275 n.13 (noting that the PCRA court is free to examine
questions that may arise in the context of a due diligence inquiry).8
For the above reasons, we conclude that the PCRA court erred in
rejecting Appellant’s untimely petition pursuant to the public records rule.
Moreover, based on the record before us, the Goodwine motion raises
genuine issues of material fact that warrant development. See Springer,
961 A.2d at 1264. Accordingly, the order of the PCRA court is vacated, and
this matter is remanded for an evidentiary hearing.
Order vacated. Case remanded. Jurisdiction relinquished.
Judges Ford Elliott, PJE, Panella, J., Donohue, J., Mundy, J. and Ott, J.
join this Opinion.
Judge Olson files a dissenting opinion in which Gantman, P.J. and
Shogan, J. join.
____________________________________________
8
Generally, we observe that the PCRA court’s timeliness analysis of
Appellant’s after-discovered facts exception is erroneous to the extent the
court also conducted a merits analysis. See PCRA Court Opinion at 3-5;
Bennett, 930 A.2d at 1270-72.
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J-E04008-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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