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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    MARK KANE                    :
                                 :
                Appellant        :             No. 907 EDA 2017

                  Appeal from the PCRA Order March 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0928271-1986

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J. *

MEMORANDUM BY NICHOLS, J.:                         FILED FEBRUARY 12, 2018

        Appellant Mark Kane appeals pro se from the order dismissing as

untimely his second petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant claims that we should review

the merits of his claim of after-discovered exculpatory evidence because he

pled and proved the newly discovered facts and governmental interference

exceptions to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(ii)-(iii). We

affirm.

        Appellant’s conviction for first-degree murder and possession of an

instrument of crime1 arose out of a 1986 drive-by shooting. In 1987, a jury

convicted Appellant of first-degree murder and possessing an instrument of

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(a) and 907, respectively.
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crime. In 1999, the United States District Court for the Eastern District of

Pennsylvania granted Appellant’s petition for writ of habeas corpus and

ordered a new trial. At the re-trial, a jury again found Appellant guilty and

the trial court sentenced him to life imprisonment and a concurrent 2½ to 5

years’ incarceration on February 27, 2003.

       On April 15, 2005, this Court affirmed Appellant’s judgment of sentence.

Appellant did not petition the Pennsylvania Supreme Court for review. On

March 22, 2006, Appellant timely filed his first PCRA petition and counsel was

appointed.     Appellant filed a request to waive his right to counsel and,

following a Grazier2 hearing, his request was granted.        The PCRA court

dismissed Appellant’s petition, and this Court affirmed on July 7, 2009. See

Commonwealth v. Kane, 1463 EDA 2008, unpublished mem. at 1-4 (Pa.

Super. filed July 7, 2009).

       On September 14, 2015, Appellant filed the instant pro se PCRA petition,

his second. Appellant amended his petition on March 25, 2016, and again on

June 28, 2016.          In his petitions, Appellant attempted to invoke the

governmental interference and newly discovered evidence exceptions, as

codified in 42 Pa.C.S. § 9545(b)(1)(i) and (ii), respectively.    Appellant, in

relevant part, asserted that he was recently able to contact James Hill.

According to Appellant, he met Hill two months before the crime, and a few

days before the shooting, Appellant had given the transmission of his car to
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2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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Hill for Hill to repair, thus rebutting the Commonwealth’s evidence that

Appellant used his own car in the murder.3       Appellant asserted that he could

not locate Hill earlier because he was incarcerated since 1986 and prison

officials did not provide him with a telephone book.        Hill sent Appellant a

notarized letter dated May 19, 2016, indicating that he would testify that:

Appellant’s vehicle was inoperable at the time of the murder; Hill was near

the scene of the crime; and Appellant was not present in the vicinity of the

crime.

       On January 31, 2017, the PCRA court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907. On February 15, 2017, Appellant responded to

the notice. On March 13, 2017, the PCRA court dismissed Appellant’s PCRA

petition as untimely. Appellant timely filed a notice of appeal. The PCRA court

did not order Appellant to submit a Pa.R.A.P. 1925(b) statement, but filed a

Rule 1925(a) opinion.

       Appellant raises the following issues on appeal:

       1. Was jurisdiction properly pled and invoked?

       2. Did Appellant properly seek relief by invoking 42 Pa.C.S. §
          9545(b)(1)(i) and (ii)?

       3. Was Appellant’s Second Addendum timely filed within the 60
          day window of 42 Pa.C.S. § 9545(b)(2)?

       4. Was discretion abused and an error of law committed when the
          PCRA court refused to make credibility determinations, findings
          of fact and conclusions of law regarding Appellant’s claim of
          discovering a new, previously unknown fact; diligence in
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3While Appellant now proffers Hill as a material witness, it is unclear whether
Appellant informed either his 1987 or 2003 trial counsel of Hill’s existence.

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         discovering that fact; and whether the alleged fact was
         exculpatory? And does the record support the PCRA court’s
         conclusion?

      5. Was discretion abused and an error of law committed by the
         PCRA court when it did not examine Appellant and his properly
         proffered witness James Hill to:         1) make credibility
         determinations, findings of fact and conclusions of law
         regarding; 2) Appellant’s claimed new discovery of a previously
         unknown fact; 3) his diligence in discovering it; 4)
         governmental interference in discovering it; 5) lack of access
         to public records; and 6) the properly proffered witness’s
         credibility in stating Appellant’s car was transmissionless
         because he was rebuilding it; that he was present at the scene
         when the murder occurred; and, that Appellant was not there?

Appellant’s Brief at 6.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015),

appeal denied, 125 A.3d 1197 (Pa. 2015) (citation omitted). A 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. § 9545(b)(1). A judgment

is 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.” 42 Pa.C.S.

§ 9545(b)(3).




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       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner pleads and proves

one of the following three statutory exceptions:

       (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). To invoke one of these exceptions, however,

petitioner must also file his petition within sixty days of the date the claim

could have been presented. See 42 Pa.C.S. § 9545(b)(2).

       Because Appellant failed to file the instant PCRA petition one year after

after his conviction became final,4 he must satisfy one of the exceptions to the

PCRA time bar. Appellant claims that he meets the governmental interference

and the newly discovered facts exceptions.             See 9545(b)(1)(ii), (iii).

Therefore, we consider Appellant’s claim that the PCRA court erred in rejecting

his claims that he pled and proved an exception under either section

9545(b)(1)(ii) or (iii).


____________________________________________
4 There is no dispute here that Appellant’s conviction became final in 2006 and
that Appellant’s current PCRA petition, filed on September 14, 2015, was
facially untimely.

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      First, Appellant claims that he met the newly discovered facts exception.

He asserts that the new fact was a notarized letter from James Hill, which he

received on May 19, 2016, containing exculpatory evidence. In his attempt

to prove that he exercised due diligence, Appellant submitted an affidavit from

his sister, Dolores Longendorfer, alleging that she unsuccessfully searched for

individuals named James Hill from 1986 to 2016.

      Further, Appellant asserts that he had several conversations with family

members requesting that they call every James Hill in the telephone book.

See Am. PCRA Pet., 6/28/16, at 3. He explains that it was not until his sister

became frustrated with his continued requests that he asked her to send him

a list of every James Hill in the telephone book. Id. He claims that he wrote

to every James Hill and, on May 19, 2016, received the aforementioned

notarized letter. Id. In his brief, Appellant cites Commonwealth v. Burton,

158 A.3d 618 (Pa. 2017), in support of his argument that he exercised due

diligence in obtaining Hill’s letter. Appellant’s Brief at 21.

      To raise a successful newly discovered evidence claim a petitioner must

show that: (1) “the facts upon which the claim was predicated were unknown”

and (2) the facts “could not have been ascertained by the exercise of due

diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). This “new-facts” exception does not

require us to analyze the merits of the case or the underlying “after-discovered

evidence claim.”    Brown, 111 A.3d at 177.         “Once jurisdiction has been

established, a PCRA petitioner can present a substantive after-discovered-

evidence claim.” Id. at 176.

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      The Pennsylvania Supreme Court held that “the presumption that

information which is of public record cannot be deemed ‘unknown’ for

purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner

petitioners[.]”     Burton,    158   A.3d    at   638   (emphasis   in   original).

Nevertheless, Burton did not eliminate the requirement that a pro se

petitioner must exercise due diligence even if he is in prison. See id.

      Here, the PCRA court held that

      with the exception of Longendorfer’s, [Appellant] did not submit
      affidavits of the other alleged family members he contacted
      regarding finding Hill. He also did not submit evidence of any prior
      attempts to find Hill. Although he might not have been aware of
      Hill’s alleged new exculpatory evidence, he had previously stated
      that Hill was a potential witness who would corroborate
      [Appellant]’s testimony regarding his vehicle being inoperable at
      the time of the homicide. In sum, [Appellant] did not provide
      evidence as to why he could not have ascertained these alleged
      newly discovered facts with the exercise of due diligence.

PCRA Ct. Op., 4/28/17, at 4-5. We agree.

      Appellant has been incarcerated since 1986, yet it was not until 2016

that he asked his sister to send him a list of all of the James Hills in the

telephone book. He alleges that he continually attempted to contact Hill since

1986 through his sister. Appellant fails to explain, however, why he took no

additional efforts to contact Hill before his second trial in 2003, such as

utilizing trial counsel.   There is no indication that Appellant provided Hill’s

name to either his 1987 or 2003 trial counsel for them to investigate. Thus,

Appellant fails to demonstrate that he exercised reasonable diligence in

obtaining Hill’s notarized letter.


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      Second,   Appellant    argues   that   he   satisfied   the   governmental

interference exception. He claims that because he did not have access to a

telephone book while incarcerated, he could not find a missing witness, Hill.

Appellant relies on Bounds v. Smith, 430 U.S. 817 (1977), which held that

prisoners have a constitutional right of access to the courts and that this right

“requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or

adequate assistance from persons trained in the law.” Id. at 828. Appellant

argues that because he did not have access to a telephone book, he could not

locate Hill until May 19, 2016.

      To satisfy the governmental interference exception, Appellant must

show that he could not raise his claim previously due to governmental

interference. 42 Pa.C.S. § 9545(b)(1)(i).

       The United States Supreme Court in Bounds reaffirmed the

longstanding constitutional right for prisoners to have access to courts.

Bounds, 430 U.S. at 828.      The Bounds Court, however, did not create a

specific right to a law library or legal assistance, see Lewis v. Casey, 518

U.S. 343, 351 (1996), it merely provided that these were constitutionally

acceptable methods that did not foreclose other means to achieve the goal of

access to courts, see Bounds, 430 U.S. at 830.

      Appellant does not argue that his right to access the court was infringed.

Rather, he argues that lack of access to a telephone book constitutes a


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governmental interference by prison authorities.        Appellant cites no legal

precedent for the proposition that prisoners’ constitutional right of access to

the courts requires access to telephone books.         As the trial court stated,

Appellant “had access to both legal and business directories, as per the United

States Supreme Court decision in Bounds.” PCRA Ct. Op. at 4.

      Further, Appellant does not explain why he could not have challenged

his lack of access to a telephone book earlier or why he did not seek alternate

means of attempting to contact Hill prior to his second trial in 2003. See

Commonwealth v. Rizvi, 166 A.3d 344, 349 (Pa. Super. 2017) (noting that

even if appellant’s claim of limited access to a library and his restricted housing

status constituted governmental interference possessed any merit, “he

fail[ed] to offer a reasonable explanation why, with the exercise of due

diligence, he did not ascertain this alleged interference of government officials

earlier and seek redress”) (citation omitted); see also 42 Pa.C.S. §

9545(b)(2) (“Any petition invoking an exception . . . shall be filed within 60

days of the date the claim could have been presented.”). Thus, Appellant’s

governmental interference claim also fails.

      Accordingly, Appellant failed to successfully plead and prove an

exception to the PCRA time bar. Thus, we agree with the PCRA court that it

lacked jurisdiction to consider the merits of Appellant’s underlying claim that

Hill’s statement constituted after-discovered evidence warranting a new trial.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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