J-S73018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DERRICK HOWARD BURNSIDE                   :
                                           :
                    Appellant              :   No. 806 MDA 2019

            Appeal from the PCRA Order Entered April 16, 2019
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0004381-2003


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 13, 2020

      Derrick Howard Burnside appeals from the order, entered in the Court

of Common Pleas of Lancaster County, denying his second petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

After our review, we affirm.

      On December 22, 1998, Burnside and a co-conspirator, Eddie Vasquez,

set the victim, James Bell, on fire. Testimony at trial indicated that the victim

had been doused with lighter fluid before being set on fire. Testing of Bell’s

clothing also suggested the presence of an accelerant. It was unclear from

the testimony who physically set Bell on fire and, due to complications from

his burns, which covered 18-20% of his body, Bell died on January 30, 1999

at Crozier Chester Medical Center.       The manner of death was listed as

homicide. See Commonwealth v. Burnside, No. 1198 MDA 2004, at 2 (Pa.

Super. filed December 14, 2005) (Unpublished Memorandum).
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      On June 10, 2004, a jury convicted Burnside of second-degree murder,

arson, recklessly endangering another person, and two counts of criminal

conspiracy.   On July 14, 2004, the court sentenced Burnside to life

imprisonment for second-degree murder. The court also sentenced Burnside

to concurrent terms of twenty (20) to forty (40) years’ imprisonment for

conspiracy to commit murder, four (4) to twenty (20) years’ imprisonment for

arson, and three (3) to twenty-three (23) years’ imprisonment for conspiracy

to commit arson. This Court affirmed the judgment of sentence on December

14, 2005. See id. Burnside filed a petition for allowance of appeal, which our

Supreme Court granted in part on September 14, 2006. Commonwealth v.

Burnside, 908 A.2d 269 (Pa. 2006).         On June 8, 2007, the appeal was

dismissed as improvidently granted.       Commonwealth v. Burnside, 926

A.2d 428 (Pa. 2007).

      On May 13, 2008, Burnside filed his first PCRA petition, challenging trial

counsel’s effectiveness. The PCRA court denied that petition and, on appeal,

this Court affirmed the convictions, but vacated and remanded for

resentencing. See Commonwealth v. Fortune, 451 A.2d 729 (Pa. Super.

1982) (holding felony murder and predicate offense merge for sentencing

purposes).

      On March 30, 2015, Burnside filed the instant pro se petition. The PCRA

court appointed counsel, who filed an amended petition and a second




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amended petition on June 10, 2016.1 The Commonwealth filed responses.

The PCRA court held a status conference, set a briefing schedule and held

hearings on December 9, 2016 and on February 2, 2017.

       At the February 2, 2017 hearing, the Commonwealth introduced two

letters written by recanting witness Michael Gantz (the Gantz letters). Gantz

sent those letters, dated September 29, 2003, and December 15, 2003, to

Assistant District Attorney Todd Brown, prior to Burnside’s trial, seeking

leniency in pending charges. Burnside argued those letters were not provided

in discovery and they supported Gantz’s recantation testimony, suggesting

that Gantz lied at trial in return for favorable treatment with respect to his

own pending charges. At the conclusion of that hearing, Burnside sought, and

the court granted, additional time to review the exhibits and to determine

whether they constituted Brady2 material. See Supplemental Amended PCRA

Petition, 3/31/17, at ¶¶ 27-32.

____________________________________________


1 See Pa.R.Crim.P. 904(D) (“On a second or subsequent petition, when an
unrepresented defendant satisfies the judge that the defendant is unable to
afford or otherwise procure counsel, and an evidentiary hearing is required as
provided in Rule 908, the judge shall appoint counsel to represent the
defendant.”).

2 Brady v. Maryland, 373 U.S. 83 (1963). Under Brady and subsequent
decisional law, a prosecutor has an obligation to disclose all exculpatory
information material to the guilt or punishment of an accused, including
evidence of an impeachment nature.            See, e.g., Commonwealth v.
Hutchinson, 25 A.3d 277, 310 (Pa. 2011). To establish a Brady violation,
an appellant must prove three elements: (1) the evidence at issue was
favorable to the accused, either because it is exculpatory or because it
impeaches; (2) the evidence was suppressed by the prosecution, either
willfully or inadvertently; and (3) prejudice ensued. Hutchinson, supra.

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       As the PCRA court notes, and Burnside concedes, the instant petition is

untimely on its face. Burnside, however, invokes the newly discovered facts

exception. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (petitioner alleges and proves

facts upon which claim is predicated were unknown and could not have been

ascertained by exercise of due diligence). Specifically, his filings were based

on alleged recantations of testimony from three trial witnesses, including

Michael Gantz. Burnside attached affidavits to his petitions, and claims he has

met the requirements of section 9545(b)(2), which requires a petitioner

asserting a timeliness exception to file a petition within 60 days of the date

the claim could have been presented.3

       The PCRA court determined Burnside’s petitions fell within the newly

discovered evidence exception.           42 Pa.C.S.A. § 9545(b)(1)(ii).   Burnside

became aware of Gantz’s recantation statement on April 14, 2016; his second

amended PCRA petition was filed within 60 days, on June 10, 2016. The court

addressed the merits of Burnside’s claim and concluded the recantations were

coerced and not credible. The PCRA court, therefore, found Burnside’s after-

discovered evidence claim meritless and, thus, ineligible for relief under

section 9543(a)(2)(vi) (unavailability at time of trial of exculpatory evidence
____________________________________________


3 On October 24, 2018, the General Assembly amended section 9545(b)(2),
extending the time for filing a petition from 60 days to one year from the date
the claim could have been presented. Section 3 of Act 2018, Oct. 24, P.L.
894, No. 146, effective in 60 days [Dec. 24, 2018] provides that the
amendment of subsection (b)(2) by that Act shall apply to claims arising on
Dec. 24, 2017 or thereafter.



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that has subsequently become available and would have changed outcome of

trial if it had been introduced).4 This appeal followed.
____________________________________________


4 This Court has previously explained the interplay between the newly
discovered facts exception to the timeliness requirements and a substantive
collateral claim of after-discovered evidence as follows:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned those
       facts earlier by the exercise of due diligence. Due diligence
       demands that the petitioner take reasonable steps to protect his
       own interests. 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. Additionally, the focus of this
       exception is on the newly discovered facts, not on a newly
       discovered or newly willing source for previously known facts.

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
       evidence” exception. This shorthand reference was a misnomer,
       since the plain language of subsection (b)(1)(ii) does not require
       the petitioner to allege and prove a claim of “after-discovered
       evidence.” Rather, as an initial jurisdictional threshold, Section
       9545(b)(1)(ii) requires a petitioner to allege and prove that there
       were facts unknown to him and that he exercised due diligence in
       discovering those facts. Once jurisdiction is established, a PCRA
       petitioner can present a substantive after-discovered-evidence
       claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
       eligible for relief under PCRA, petitioner must plead and prove by
       preponderance of evidence that conviction or sentence resulted
       from, inter alia, unavailability at time of trial of exculpatory
       evidence that has subsequently become available and would have
       changed outcome of trial if it had been introduced). In other
       words, the “new facts” exception at

          [S]ubsection (b)(1)(ii) 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 ascertained by the
          exercise of due diligence. If the petitioner alleges and



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       Burnside raises the following issues for our review:

          1. At [Burnside’s] trial, a prisoner and Commonwealth witness
             testified that he heard [Burnside] confess to murder. At
             [his] PCRA hearing, the Commonwealth revealed that the
             prisoner and now-recanting witness [Michael Gantz] wrote
             to the trial prosecutor, requested a benefit, and received
             that benefit. Did the PCRA court err when it held that the
             Commonwealth’s failure to disclose [the Gantz letters] could
             not have affected the outcome of trial?

          2. After the same PCRA hearing, [Burnside] requested
             discovery of any correspondence between the trial
             prosecutors and the witnesses. The PCRA court did not rule
             on the discovery request. Was its de facto denial improper?

Appellant’s Brief, at 4.

       When reviewing the denial of a PCRA petition, we must determine

whether the PCRA court’s order is supported by the record and free of legal

error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).

Generally, we are bound by a PCRA court’s credibility determinations, but with

regard to a court’s legal conclusions, we apply a de novo standard. Id.

However, we first address the timeliness of Burnside’s petition, as timeliness

is a jurisdictional requisite and may not be altered or disregarded in order to

____________________________________________


          proves these two components, then the PCRA court has
          jurisdiction over the claim under this subsection.

       Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
       require any merits analysis of an underlying after-discovered
       evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)
(some citations and quotation marks omitted, emphases omitted), appeal
denied, 125 A.3d 1197 (Pa. 2015).


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address the merits of a petition.         See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007); see also Commonwealth v. Gamboa–Taylor,

753 A.2d 780, 783 (Pa. 2000) (“[W]hen a PCRA petition is not filed within one

year of the expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not filed within 60

days of the date that the claim could have been first brought, the [PCRA] court

has no power to address the substantive merits of a petitioner’s PCRA

claims.”).

       Here, Burnside’s claims of newly-discovered evidence relate to the

recantation of trial testimony.5 Burnside became aware of Gantz’s recantation

statement on April 14, 2016 and filed his second amended petition within 60

days, on June 10, 2016. We agree with the PCRA court’s determination that

Burnside has pled and proven the newly-discovered evidence exception. See

42 Pa.C.S.A. § 9545(b)(1)(ii) (facts upon which claim is predicated were

unknown to petitioner and could not have been ascertained by exercise of due

diligence); 42 Pa.C.S.A. § 9545(b)(2).

       In his petition, Burnside argues his conviction resulted from “the

unavailability at the time of trial of exculpatory evidence that has subsequently

become available and would have changed the outcome of the trial if it had

been introduced.”       See Supplemental Amended PCRA Petition, supra at ¶
____________________________________________


5Although Burnside raised the recantation testimony with respect to three
witnesses, we confine our review to one witness, Michael Gantz, as Burnside
has abandoned his claims with respect to the other two witnesses. See
Appellant’s Brief, at 4.

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33.   Burnside claims that Gantz testified against him at trial in return for a

favor from the assistant district attorney with respect to Gantz’s probation

violations. He claims the Gantz letters support this argument and the PCRA

court erred in concluding the Commonwealth’s failure to disclose the letters

could not have affected the outcome of his trial. We disagree.

      In the first letter, dated September 29, 2003, Gantz requests a “walk-

in” status on a parole/probation violation.     Gantz discussed his probation

violation that resulted from a new charge, just as he had testified at trial. See

N.T. PCRA Hearing, 2/2/17, at 11-12; N.T. Trial, 6/7/04, at 185-86. The letter

was admitted as Exhibit 6 and read into the record at the February 2, 2017

PCRA hearing. It provides, in relevant part:

      I’m not asking for much. I was wondering if I can please get walk-
      in PV. The reason why is my wife needs my help really bad with
      my kids and with her moving, she needs help financially. And I
      have–and I do have a job. . . All I’m asking is can I have a chance,
      please, to come home and work, work, take care of my kids, and
      you now that I will show up for trial and I won’t give yous [sic]
      any problems about testifying.

N.T. PCRA Hearing, 2/2/17, at 10-12.

      In the second letter, dated December 15, 2003, Gantz asks for house

arrest and a “walk-in” status on a parole/probation violation.      That letter,

admitted as Exhibit 7, was read into the record at the February 2, 2017 PCRA

hearing. It provides, in relevant part:

      Todd, I’m very sorry. I screwed up again. But I only had one
      dirty urine[], a trace, plus I admitted to my PO that I was dirty,
      but I didn’t get any new charges. I did show up for my court
      hearings. Regardless, if you help me, and if you help me through

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      this or not I will still testify for you. All I’m asking is if I can get
      house arrest and walk-in PV but be on monitor until my hearing.

Id. at 12.

      As the Commonwealth points out, at Burnside’s trial Gantz was cross-

examined extensively with respect to his testimony regarding his prior and

pending criminal matters, and as to whether he had been offered or given

anything by the Commonwealth for his cooperation. See N.T. Trial, 6/7/04,

at 202-05. In fact, at trial, in response to whether he expected anything after

he testified, Gantz stated:

      A: Well, the only thing I would like is for the courts to give me a
      little leniency, you know, for me testifying in this case.

      Q: And when you talk about leniency, you’re referencing that open
      charge you still have right now?

      A: Right, exactly.

Id. at 193. On re-direct, Gantz repeated that the prosecutor did nothing to

assist him in obtaining “walk-in” status for his probation violations. Id. at

207-08, 210.

      Under Brady and subsequent decisional law, a prosecutor has an

obligation to disclose all exculpatory information material to the guilt or

punishment of an accused, including evidence of an impeachment nature.

See, e.g., Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa. 2011).

To establish a Brady violation, an appellant must prove three elements: (1)

the evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by the


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prosecution, either willfully or inadvertently; and (3) prejudice ensued.

Hutchinson, supra.

       Here, the trial court assumed, for the sake of argument, the Gantz

letters were favorable to Burnside. However, even if suppressed willfully or

inadvertently, Burnside suffered no prejudice. The PCRA court determined

Michael Gantz’s recantation was not credible because it was the result of

interference by Burnside’s mother.        See N.T. PCRA Hearing, 12/9/16, at 41.

Despite Gantz’s denial of having received money for his statement, Detective

Andrew Morgan’s testimony refuted that, recounting a recorded prison phone

call   between    Burnside   and   his     mother   wherein   Burnside’s   mother

acknowledged that she had “loaned” Gantz money prior to the PCRA

proceeding.      See id. at 102-103.        Further, as brought out on cross-

examination, Gantz’s criminal history included multiple crimes of dishonesty:

retail theft, theft by unlawful taking, receiving stolen property, forgery and

unsworn falsification to law enforcement authorities. See id. at 32-34. See

also Smith, supra (this Court is bound by the PCRA court’s credibility

determinations).     Finally, and most critical to our Brady analysis, the letters

illustrate nothing different than what was brought out at trial. We conclude,

therefore, that the trial court correctly determined that the recantation

evidence would not have altered the outcome of the trial, Hutchinson, supra,

and Burnside is not entitled to relief.

       Order affirmed




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/13/2020




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