J-S62016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 LAFAYE GASKINS                          :
                                         :
                   Appellant             :   No. 2371 EDA 2017

                Appeal from the PCRA Order June 29, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0638541-1989


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED JANUARY 17, 2019

     LaFaye Gaskins appeals from the order denying his petition filed

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

(“PCRA”), as untimely. Gaskins argues that his petition was timely under the

newly-discovered facts and governmental-interference exceptions to the PCRA

time-bar. We remand for a determination as to whether the newly-discovered

facts exception applies. However, we affirm the PCRA court’s conclusion that

Gaskins failed to establish the governmental interference time-bar exception.

     We summarized the facts of this case in a prior appeal as follows:

        [T]he testimony at trial established that, on the day of the
        murder, [Gaskins] and several cohorts conspired to sell a
        large quantity of drugs to the victim and the victim’s friend.
        This was not the first time that such a transaction had
        occurred, and the parties were familiar with each other.

        Mr. Edward Lee Clyburn, the victim’s friend, remained in the
        vehicle during the transaction because he noticed that
        [Gaskins] was armed and feared that [Gaskins] planned to
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           rob them. Mr. Clyburn warned the victim to forego the sale,
           but the victim did not heed his advice and insisted on going
           through with the sale.

           Mrs. Gloria Pittman, a local resident, saw [Gaskins], the
           victim and a third man engaged in conversation across from
           her home. The victim carried a distinctive draw-string bag
           which contained approximately $20,000. The threesome
           then entered an abandoned building. Soon thereafter, Mrs.
           Pittman heard a gunshot and observed [Gaskins] and the
           third man flee the scene. At this time, [Gaskins] carried the
           same bag previously observed with the victim.

Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997). We

further noted that Pittman “testified at trial in a coherent and certain manner”

and that she “remained resolute,” even though trial counsel conducted “a

rigorous cross examination in which [counsel] attempted to discredit [her] by

questioning her [about] her drug use on the day in question and her ability to

identify with certainty strangers seen from her window across the street.” Id.

at 228.1

       A jury found Gaskins guilty of first-degree murder, robbery, and

possession of an instrument of crime, and the trial court sentenced him to life

in prison. This Court affirmed the conviction on November 6, 1992. Gaskins

did not file a petition for allowance of appeal with the Pennsylvania Supreme

Court.

       Gaskins has filed numerous petitions seeking post-conviction relief. The

following filings and orders are relevant to this appeal. In 2004, Gaskins filed
____________________________________________


1  The Notes of Testimony are not part of the certified record. From additional
filings, it also appears an additional witness, Ralph Taylor, testified to, at a
minimum, introducing Gaskins to the victim. See, e.g., Supp. Am. Pet. Under
the Post Conviction Relief Act, filed Mar. 22, 1994, at ¶ B.

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a PCRA petition, alleging it was timely under the newly-discovered fact

exception and raising, among other claims, an after-discovered evidence claim

based on an affidavit from Barry Ward, Gaskins’ step-uncle. Ward stated in

the affidavit that Pittman told him that she was paid for her testimony. The

PCRA court denied this petition as untimely, and we affirmed.

      In 2006, Gaskins filed another PCRA petition, which challenged the jury

selection procedure the Philadelphia District Attorney’s Office used. The PCRA

court denied the petition; Gaskins did not appeal.

      In 2008, Gaskins filed a PCRA petition seeking leave to appeal nunc pro

tunc the denial of his 2006 PCRA petition. The PCRA court denied this petition

as untimely.

      In 2009, Gaskins filed a PCRA petition seeking, among other things,

leave to appeal the denial of the 2008 PCRA petition nunc pro tunc because

the PCRA court failed to advise him of his appellate rights when it denied his

2008 petition. The PCRA court granted the petition, but Gaskins did not file

the appeal.

      On March 13, 2012, Gaskins placed the instant PCRA petition in the mail.

He made two claims: (1) He has after-discovered evidence that Pittman was

coerced into providing identification testimony; and (2) he is entitled to nunc

pro tunc reinstatement of his right to appeal the dismissals of his prior PCRA

petitions.

      As to his after-discovered evidence claim, he asserted the newly-

discovered fact exception to the PCRA time bar and pled the following. After

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Ward told Gaskins’ mother in November 2003 that Pittman had said she was

paid for her testimony, Gaskins’ mother hired a private investigator to locate

both Ward and Pittman. The investigator found Ward in May 2004 and

obtained his affidavit, and Gaskins filed his May 2004 PCRA petition based on

that affidavit. However, the investigator did not locate and interview Pittman

until October 2005. At that time, Pittman said that she could not identify the

person she saw on the night of the shooting and had told police officers so.

PCRA Pet., filed Mar. 13, 2012 (“2012 PCRA Petition”), at 8 & Ex. F. However,

Pittman stated the only money she received was for car fare and “maybe

something to eat if she was there all day.” Id. She also said that she “never

lied about anything,” neither the police nor the prosecutor told her to lie about

Gaskins, and she was never paid for testimony. Id.

      Pittman later wrote to Gaskins in January 2012, telling a slightly

different story. She again stated that she did not, and could not, identify

Gaskins on the night in question, but for the first time said that she “went to

court because the police said that if I didn’t that they were going to lock me

up.” 2012 PCRA Pet., at Ex. A, Letter from Pittman to Gaskins, dated January

14, 2012. She subsequently signed an affidavit stating she was not able to

identify Gaskins, but did so “because of police pressure” and because she “did

not want to be locked up.” 2012 PCRA Pet., at Ex. B, Pittman Affidavit. She

further stated in her affidavit that she would be willing to testify at a hearing

on the matter. Id. After receiving the affidavit, Gaskins filed the instant PCRA

petition.

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      Regarding his request to appeal the denials of his prior PCRA petitions,

Gaskins asserted that this request was timely pursuant to the governmental-

interference exception, and pled as follows. In January 2011, he allegedly

received a copy of the trial court’s docket entries, at which time he first learned

of the order granting him a nunc pro tunc appeal of the denial of his 2008

petition. The docket entry reads, “Order Granting PCRA Petition - Leave to

Appeal NPT to Superior Ct . . . From PCRA that was dismissed on 2/26/2008.”

Docket entry, 12/17/2010.

      However, Gaskins alleges that the order did not dispose of other claims

his 2009 petition raised. His mother called the judge’s chambers, and the

secretary allegedly said that there was a status hearing scheduled for February

28, 2011, and that the court would issue an order after it reached a decision

on the other claims. No hearing took place. Gaskins wrote to the PCRA judge

in April 2011, inquiring as to the status of his case. He received in response a

copy of the docket sheet, identical to the one he received in January 2011.

His mother called the judge’s chambers again but learned no additional

information.

      He then wrote to the president judge of the Philadelphia Court of

Common Pleas in May and June 2011, but received no relief. He then filed a

petition for original process and a writ of mandamus and/or extraordinary

relief in the Pennsylvania Supreme Court. The Court granted his request for

original process in February 2012, but refused to grant a writ of mandamus




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or extraordinary relief. Gaskins then instituted this PCRA petition in March

2012.

        The PCRA court appointed counsel, who filed an amended petition. The

court later denied the instant PCRA petition as untimely, and Gaskins filed a

timely appeal.

        Gaskins raises the following issues:

        1.    Whether the PCRA court erred by dismissing the newly
              discovered recantation claim as untimely, where
              [Gaskins] alleged and proved that he could not have
              raised it earlier by exercise of due diligence, the claim did
              invoke     the    PCRA    exception      at  42    Pa.C.S.A.
              § 9545(b)(1)(ii), and it was timely filed within 60 days of
              obtaining Gloria Pittman’s affidavit pursuant to
              § 9545(B)(2)?

        2.    Whether the PCRA court erred by dismissing as untimely
              [Gaskins’] claim that he is entitled to reinstatement of
              [Gaskins’] rights due to government interference?

Gaskin’s Br. at 2 (unnecessary capitalization and trial court answers omitted).

        Our standard of review from the denial of post-conviction relief “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).

        The timeliness of a PCRA petition is jurisdictional. A PCRA petition “shall

be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 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




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Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S.A. § 9545(b)(3).

       This Court affirmed Gaskins’ judgment of sentence on November 6,

1992. His judgment therefore became final on December 7, 1992.2 His current

petition, filed on May 14, 2012, is therefore facially untimely.

       To overcome the one-year time bar, Gaskins bore the burden of pleading

and proving one of the three exceptions: (i) unconstitutional interference by

government officials; (ii) newly discovered facts that he could not have

previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively. See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii). Further, the petition must have been “filed within 60 days

of the date the claim could have been presented.” See 42 Pa.C.S.A. §

9545(b)(2).

       Regarding his after-discovered evidence claim based on Pittman’s

affidavit, Gaskins claims he proved the newly-discovered fact exception to the

PCRA time bar. To satisfy this exception, a PCRA petitioner must plead and

prove that “the facts upon which the claim was predicated were unknown” to

him and “could not have been ascertained by the exercise of due diligence.”
____________________________________________


2 Thirty days from November 6, 1992 was December 6, 1992, which was a
Sunday. See Pa.R.A.P. 1113(a) (stating petition for allowance of appeal “shall
be filed . . . within 30 days after the entry of the order of the Superior Court”).
Gaskins, therefore, had until Monday December 7, 1992 to file a timely
petition for allowance of appeal. 1 Pa.C.S.A. § 1908 (excluding weekends and
holidays from the computation of time when the last day of the time period
falls on a weekend or holiday).


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42 Pa.C.S.A. § 9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d 1264,

1272 (Pa. 2007).

       Here, the PCRA court found that Gaskins failed to demonstrate that

“Pittman’s admission to providing perjurious testimony was previously

unascertainable with the exercise of due diligence.” Trial Court Opinion, filed

Oct. 23, 2017, at 4 (“1925(a) Op.”). The court based this finding on Gaskins’

“inaction” from 1990 to 2004, when he first took steps to speak with Pittman,

opining that “he has been aware of the falsity of her testimony since his trial

in 1990.” Id.

       We do not agree that his “inaction” during this time constituted a lack

of reasonable diligence.3 We have previously rejected the argument that a

victim’s recantation was not a newly-discovered fact because the defendant

“knew” prior to trial that the victim was not telling the truth. Commonwealth

v. Loner, 836 A.2d 125, 137 n.5 (Pa.Super. 2003) (en banc)); see also

Commonwealth v. Medina, 92 A.3d 1210, 1217 (Pa.Super. 2014) (en

banc). The PCRA court attempts to distinguish Medina, claiming Gaskins had

reason to believe Pittman “may have been agreeable to divulging her

fabrication sooner” because his cross-examination of her “revealed several

inconsistencies and contradictions ‘leaning toward misidentification.’” 1925(a)

Op. at 4 n.6.

____________________________________________


3 We do not decide whether Ward’s affidavit, and Gaskins knowledge thereof,
and the steps taking after receipt of the affidavit, constitute reasonable
diligence.

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       We disagree. Although the cross-examination may have revealed

“inconsistencies,” this does not mean Gaskins should have assumed Pittman

was lying, or that if he approached her she would have recanted. Pittman

could simply have       mistakenly believed that she       saw   Gaskins.   See

Commonwealth v. Walker, 92 A.3d 766, 779 (Pa. 2014) (discussing

eyewitness testimony and noting “eyewitnesses can offer inaccurate, but

honestly held, recollections in their attempt to identify the perpetrator of a

crime”). In addition, Pittman’s unwillingness to divulge the alleged fabrication

sooner is supported by the allegation that when first approached by Gaskins’

investigator, Pittman did not want to assist Gaskins.

       Here, the PCRA court did not hold an evidentiary hearing, and made no

findings as to Gaskins’ diligence post-2004. Further, the “due diligence inquiry

is   fact-sensitive   and   dependent   upon   the   circumstances   presented.”

Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super. 2017) (quoting

Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa.Super. 2015) (en

banc)). Therefore, we remand to the PCRA court for further findings as to

whether Gaskins has met the newly-discovered facts exception to the time

bar, particularly as to whether he acted with due diligence after receiving the

2004 Ward affidavit.

       Gaskins next claims that his right to appeal the prior denial of his PCRA

petitions should be re-instated nunc pro tunc. He claims that he pled and

proved the governmental-interference time bar exception because the PCRA

court failed to advise him that his appellate rights were reinstated.

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      To establish the governmental-interference exception, a petitioner must

plead and prove (1) the failure to previously raise the claim was the result of

interference by government officials, and (2) the petitioner could not have

obtained the information earlier with the exercise of due diligence.

Commonwealth v Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). A claim

seeking reinstatement of PCRA appeal rights nunc pro tunc is cognizable under

the PCRA and is subject to the PCRA’s time constraints. See Commonwealth

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). The petitioner thus must assert

the claim within 60 days of discovering the basis of the claim. 42 Pa.C.S.A. §

9545(b)(2).

      Gaskins alleges the date on which he learned that the PCRA court

reinstated his appellate rights was January 14, 2011. Because Gaskins did not

file the instant petition until March 2012, the PCRA court concluded that he

filed it outside the 60-day window and cannot overcome the time-bar as to

this claim. The record supports these determinations. The docket entry from

which Gaskins claims to have first learned of the grant of his 2008 petition on

its face disposed of the 2009 petition. Conversely, no docket entry (or order

or other document in the certified record) states that a further hearing would

occur in February 2011. Gaskins therefore did not plead a reasonable basis

for not filing a further PCRA petition when that hearing did not occur.

      Order affirmed in part. Case remanded in part with instructions.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/19




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