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.

DISSENTING OPINION BY OLSON, J.:                      FILED AUGUST 25, 2015


       I respectfully dissent. The learned Majority holds that the trial court’s

order denying collateral relief must be vacated and that this case should be

remanded for an evidentiary hearing on whether Appellant properly invoked

the newly-discovered facts exception to the one-year time bar under the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1        To reach

____________________________________________


1
    The Majority concludes that Appellant properly invoked the
newly-discovered facts exception and foregoes consideration of Appellant’s
alternate claim that he validly asserted the governmental interference
exception. See Majority Opinion at 4, n.1. As I believe that Appellant failed
to plead and prove that the newly-discovered facts exception applies, I
would address Appellant’s government interference claim and hold that it is
meritless.
(Footnote Continued Next Page)
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this result, the Majority holds that all pro se petitioners are exempt from the

“public   records”     rule,   which    presumes   that   a   petition   invoking   the

newly-discovered facts exception to the PCRA’s one-year time bar must be

filed within 60 days of the date that the information entered the public

domain. This reinterpretation of our Supreme Court’s long-standing public

information doctrine is unwarranted. The Majority’s subjective, status-based

approach to assessing due diligence wrongly classifies petitioners, like

Appellant, according to who they are, while at the same time fails to

consider what they do to acquire supposedly new facts.               In addition, the

Majority’s new approach improperly shifts the burdens of pleading and proof
                       _______________________
(Footnote Continued)


Appellant’s governmental interference claim asserts that the contents of
Melvin Goodwine’s expungement motion constitutes exculpatory evidence
that the Commonwealth improperly withheld from him in violation of Brady
v. Maryland, 373 U.S. 83 (1963). Appellant, however, does not contend
that the Commonwealth had exclusive control over the information found in
Goodwine’s motion papers or that the Commonwealth denied him access to
this information until recently. Moreover, since Goodwine filed his motion
with the Allegheny County Department of Court Records, it was equally
available to Appellant and the Commonwealth once it entered the public
domain. Consequently, Appellant cannot establish that interference by
governmental officials frustrated any previous effort to assert a claim for
collateral relief. See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008) (although Brady violation may fall within governmental
interference exception, petitioner still must plead and prove that his failure
to previously raise the claim was the result of interference by government
officials); Commonwealth v. Chester, 895 A.2d 520, 523-524 (Pa. 2006).
Because, in my view, Appellant’s petition is untimely and no exception
applies, I conclude that the PCRA court correctly declined to review the
substantive merit of Appellant’s collateral claims.




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on collateral review to the Commonwealth, without interpretive guidance as

to how any recently recognized “subjective considerations” factor into the

due diligence inquiry. Lastly, as I shall explain below, the circumstances of

this case were more than sufficient to trigger an investigation by Appellant.

Thus, I believe that the Majority’s broad, unprecedented, and unworkable

exception to settled Supreme Court precedent constitutes a sharp and

improper departure from settled law.       For each of these reasons, I would

affirm the denial of collateral relief in this case since I believe that prevailing

Pennsylvania precedent firmly supports the PCRA court’s dismissal order.

      I begin with a review of the PCRA court’s determinations and the

undisputed legal principles that govern this case. The PCRA court rejected

the claim that the contents of Goodwine’s motion were unknown to

Appellant. See PCRA Court Opinion, 11/4/13, at 5. In addition, the court

rejected Appellant’s argument that his May 2013 receipt of the Pennsylvania

Innocence Project’s letter triggered the 60-day period referenced in

§ 9545(b)(2).    Id.   Instead, the court concluded that the 2009 filing of

Goodwine’s motion, and its concomitant entry into the public domain,

triggered § 9545(b)(2)’s 60-day period governing the time within which a

petition invoking a timeliness exception must be submitted. See id. (“Given

the specific facts and circumstances of this case, there is no reasonable

argument that the purported exculpatory evidence contained in Goodwine’s

[m]otion could not have been discovered at least by 2009 if not earlier.”).


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The Commonwealth defends this conclusion, pointing out that facts which

are a matter of public record may not be considered “unknown” for purposes

of the newly-discovered facts exception to the PCRA’s time-bar.              See

Commonwealth’s Brief at 15 and 21.             In my view, the PCRA court’s legal

conclusions, and the Commonwealth’s position on appeal, find ample support

within our appellate case law.

       To succeed in pleading and proving a timeliness exception under

§ 9545(b)(1)(ii),2 Appellant must demonstrate that “the facts upon which

[his] claim is predicated were unknown to [him] and could not have been

____________________________________________


2
   Because Appellant’s petition is manifestly untimely, it is subject to
dismissal unless Appellant 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.A. § 9545(b)(1)(i)-(iii). Additionally, any petition invoking an
exception provided in 42 Pa.C.S. § 9545(b)(1) must be filed within 60 days
of the date that the claim could have been presented. 42 Pa.C.S.A.
§ 9545(b)(2).



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ascertained     by   the   exercise     of    due    diligence.”     42    Pa.C.S.A.

§ 9545(b)(1)(ii) (emphasis added).           “Due diligence demands that the

petitioner take reasonable steps to protect his own interests.                      A

petitioner must explain why he could not have learned of the new

fact(s) earlier with the exercise of due diligence. This rule is strictly

enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011)

(citations omitted) (emphasis added), appeal denied, 50 A.3d 121 (Pa.

2012). Moreover, a petitioner seeking to invoke an exception set forth in 42

Pa.C.S.A. § 9545(b)(1) must file his petition within 60 days of the date that

the claim could have been presented.          42 Pa.C.S.A. § 9545(b)(2).        “[T]he

60–day rule requires a petitioner to plead and prove that the information on

which he relies could not have been obtained earlier, despite the exercise of

due diligence.” Commonwealth v. Williams, 105 A.3d 1234, 1239-1240

(Pa. 2014).     Because the PCRA’s jurisdictional time limits go to a court's

competency to adjudicate a controversy, the statute “confers no authority

upon [courts] to fashion ad hoc equitable exceptions to the PCRA time-bar in

addition   to    those     exceptions    expressly     delineated   in    the    Act.”

Commonwealth v. Hackett, 956 A.2d 978, 983-984 (Pa. 2008).

     Where a petitioner relies on public information to establish the

newly-discovered facts exception found in § 9545(b)(1)(ii), appellate courts

within this Commonwealth have repeatedly and consistently held that he

must file his petition within 60 days from the emergence of a “fact” into the


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public domain. Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013)

(information reflecting potential conflict of interest on the part of defense

counsel was on file with clerk of courts ten years before defendant was

convicted and 27 years before relevant PCRA petition was filed; therefore,

information was publicly available and newly-discovered facts exception did

not apply); Commonwealth v. Lopez, 51 A.3d 195, 198 (Pa. 2012) (per

curiam) (information related to defense counsel’s disciplinary issues was

publicly available seven years before defendant’s trial and 23 years before

second PCRA petition; thus, newly-discovered facts exception did not apply);

Chester, 895 A.2d at 523 (trial counsel’s arrest for driving under the

influence was a matter of public record ten years before defendant’s second

petition and, therefore, not “unknown” for purposes of newly-discovered

facts exception); Commonwealth v. Feliciano, 69 A.3d 1270, 1278 (Pa.

Super. 2013) (noting, by way of alternate holding, that information relating

to suspension of trial counsel's license to practice law did not constitute a

newly-discovered fact since information was publicly available 11 years

before defendant filed PCRA petition).

     This line of cases establishes beyond doubt that “matters of public

record [such as docketed trial court filings] are not unknown” and thus

“[do] not meet the requirement [that] the information be unknown at the

time the petition was filed” for purposes of the newly-discovered facts

exception. See e.g. Taylor, 67 A.3d 1248-1249 (emphasis added). Thus,


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where public information is cited as the basis for invoking § 9545(1)(ii), our

Supreme Court’s objective interpretation of the newly-discovered facts

exception leaves no room for concepts of relaxed vigilance or diminished

diligence, even if long periods have elapsed between public disclosure and

conviction, direct appeal, or a petition for collateral relief. Indeed, because a

PCRA petitioner carries the burden to plead and prove that a timeliness

exception applies, a fair reading of the case law clearly requires a petitioner

to comb, regularly and routinely, through public sources in order to locate

potentially   exculpatory      materials       and   come   forward   with   a   detailed

explanation as to why an untimely request for collateral relief should be

addressed. See Williams, 35 A.3d at 53 (espousing strict enforcement of

the petitioner’s duty to employ due diligence to protect his interests and

requiring explanation as to why new facts could not have been uncovered

earlier).3

____________________________________________


3
  The Majority’s opinion attempts to sidestep this binding precedent by
suggesting that “th[is] rule is not absolute” and that “[i]t must adhere to the
statutory language of Section 9545[, which requires that the facts be]
‘unknown to the petitioner.’” Majority Opinion at 15 (emphasis in original),
quoting 42 Pa.C.S.A. § 9545(b)(1)(ii). The suggestion that our Supreme
Court’s unambiguous declarations somehow excluded PCRA petitioners does
not withstand scrutiny. As even the learned Majority acknowledges, Taylor
squarely held that “matters of public record are not unknown.” Majority
Opinion at 15, quoting Taylor, 67 A.3d at 1248. I submit that this clear and
unequivocal holding means that public records are not unknown to anyone,
particularly PCRA petitioners (pro se and represented alike). To whom,
apart from PCRA petitioners such as Appellant, could the Supreme Court
have been referring in formulating this rule? Rather than applying the
(Footnote Continued Next Page)


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      The undisputed facts in this case lead inexorably to the conclusion that

Appellant failed to invoke the newly-discovered facts exception. Goodwine

filed his expungement motion with the Allegheny County Department of

Court Records in 2009. Four years passed before Appellant filed the instant

PCRA petition on July 11, 2013. Appellant nowhere specifies what steps he

took to uncover any newly-discovered facts.             Hence, Appellant’s failure to

file his petition within 60 days of the date that the alleged exculpatory

material entered the public sphere defeats his attempt to invoke the

exception found at § 9545(b)(1)(ii).

      The Majority does not, and cannot, dispute these uncontested facts.

Indeed, the Majority acknowledges that Appellant’s claim appears to conflict

with traditional applications of the Supreme Court’s public records rule. See

Majority Opinion at 14. Instead of applying well-settled precedent, however,

the Majority formulates an exception for pro se petitioners that threatens to

swallow this deeply rooted principle.             To invoke the exception found at

§ 9545(b)(1)(ii), the Majority first points out that due diligence “is

                       _______________________
(Footnote Continued)

established rule in this case, the Majority carves out an exception for pro se
petitioners in all cases going forward, reasoning that a subjective component
is part and parcel of the standard of diligence. Nevertheless, the “subjective
element” that the Majority injects into our due diligence inquiry, which it
amorphously describes as “easily accommodated by a reasonableness
analysis, but not accurately reflected by a bright line rule” (Majority Opinion
at 15), represents a clear departure from settled PCRA jurisprudence that
has     consistently    espoused    objective   criteria   when    interpreting
§ 9545(b)(1)(ii).



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fact-sensitive and dependent upon the circumstances.” Majority Opinion at

12. The Majority reasons that, in assessing Appellant’s diligence, we must

consider several factors, including the passage of time between the finality

of Appellant’s judgment of sentence and the filing of Goodwine’s motion,

Appellant’s incarcerated and pro se status, and the contention that Appellant

had no reason to initiate a search for exculpatory evidence. In the Majority’s

view, pro se petitioners occupy a special position and are now exempt in all

cases from our Supreme Court’s public records rule since they “do[] not

have access to information otherwise available to the public” and lack the

connection to public documents that retained or appointed counsel could

provide. Id. at 16. The Majority concludes that, because pro se prisoners

are no longer members of the public, “the presumption of access to

information in the public domain does not apply where the untimely PCRA

petitioner is pro se.”   Id. at 17-18. Applying this newly-minted standard,

the Majority finds that Appellant may have exercised due diligence. Id. at

18.

      For several reasons, I am unable to agree with this approach.          As a

preliminary matter, under Pennsylvania Rule of Criminal Procedure 907, the

PCRA court has the discretion to dismiss a petition without a hearing when

the court is satisfied “that there are no genuine issues concerning any

material fact, the defendant is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by any further proceedings.”


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Pa.R.Crim.P. 907(1).    To obtain reversal of a PCRA court's decision to

dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled

him to relief, or that the court otherwise abused its discretion in denying a

hearing. Commonwealth v. Paddy, 15 A.3d 431, 442-443 (Pa. 2011).

      The law is clear that “[t]he timeliness exception set forth in

[§] 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.” Commonwealth v. Brown,

111 A.3d 171, 176 (Pa. Super. 2015). We strictly enforce the principle that

“[a] petitioner must explain why he could not have learned the new fact(s)

earlier with the exercise of due diligence.” Id. Here, apart from receiving

the letter from the Pennsylvania Innocence Project, Appellant has not

alleged any steps he took to uncover Goodwine’s expungement motion. As

such, Appellant never explained why he could not have previously

discovered the new facts with the exercise of due diligence.      Accordingly,

Appellant failed to raise a genuine issue of fact that would entitle him to a

hearing and his petition was subject to summary denial.

      In vacating the PCRA court’s dismissal order, the Majority effectively

jettisons the requirement to plead and prove a diligent inquiry, insofar as the

rule applies to pro se petitioners.      Although the Majority declares its

preference for a comprehensive and fact-specific approach to assessing due


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diligence, the Majority confines its analysis to a status-based examination.

In other words, the Majority exempts Appellant from the public records

doctrine based solely upon his pro se status, not what he did to uncover any

allegedly unknown facts.     Appellant’s incarcerated and pro se status by

itself, however, offers no probative assessment of Appellant’s effort to

discover the “new” information on which he now relies. Indeed, Appellant’s

incarcerated and pro se status hardly distinguishes the present case from

any other in which an untimely petition asserts a timeliness exception.

Nearly every petitioner who invokes the exception found at § 9545(b)(1)(ii)

in order to litigate an untimely petition will be incarcerated. This is because

serving a sentence is a prerequisite for eligibility for collateral relief.   42

Pa.C.S.A. § 9543(a)(1)(i).    In addition, an overwhelming number of such

petitioners will also be acting pro se since they are no longer eligible for

appointed counsel.   See Pa.R.Crim.P. 904(c) and cmt.       Hence, the factors

cited by the Majority do not meaningfully distinguish the present case from

any other in which the newly-discovered facts exception is invoked, much

less counter the undisputed conclusion that Appellant did nothing for four

years while Goodwine’s motion lingered in the public domain. It is difficult

to conceive of a petition more deficient in pleading due diligence than the

one filed in this case.   Therefore, going forward, there is every reason to

believe that all pro se petitioners who invoke the after-discovered facts

exception based on public information will be entitled to a hearing on their


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claims since comprehensive fact-finding, tailored to suit the pro se

petitioner’s particular circumstances, is now required.

       Second, the basis of the Majority’s blanket conclusion that all pro se

petitioners    lack   access    to   public    records   rests   on   unsubstantiated

assumptions.4      Although the Majority criticizes the PCRA court for making

determinations in a vacuum, the Majority’s due diligence analysis is similarly

flawed. The Majority observes that while “public records [are] presumptively

knowable,” this assumption does not hold for pro se petitioners who are

often incarcerated because they are no longer members of the public.

Majority Opinion at 16.        Here, the Majority infers, without support, that all

pro se prisoners are entirely isolated and have no access to publicly available

information. But, the Majority makes no effort to ascertain what resources,

contacts, and capabilities are available to Appellant, or others who are

similarly situated, to discover public information such as the contents of

Goodwine’s expungement motion. Incarcerated individuals (whether pro se

____________________________________________


4
  While the Majority declares that, “[it] make[s] no assumptions regarding
Appellant’s access to Goodwine’s criminal docket,” Majority Opinion at 19,
the text of its opinion is replete with examples that suggest the Majority’s
reservations about the access of pro se petitioners to public information.
See e.g. id. at 16 (“a pro se petitioner does not have access to information
otherwise readily available to the public;” “A PCRA petitioner is most often
incarcerated, and thus, no longer a member of the public.”). Indeed, it is
these unsubstantiated assumptions that lead the Majority to reject clear
Supreme Court precedent and shift the burdens of pleading and proof in all
future PCRA cases in which pro se petitioners cite public information as the
basis for invoking the timeliness exception set forth at § 9545(b)(1)(ii).



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or represented by counsel) reside in prisons, not off-the-grid islands.

Prisons within this Commonwealth have law libraries, computer terminals,

internet access, and legal aid assistance. It is unsurprising, then, that in the

closely   related     context     of    petitions       that   invoke    newly-recognized

constitutional rights under § 9545(b)(1)(iii), this Court routinely denies relief

to pro se, incarcerated petitioners where, among other things, they fail to

file their petitions within 60 days of the date a court decision enters the

public domain. See Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.

Super. 2012) (pro se prisoner who had served more than two decades

toward life sentence was not entitled to relief under § 9545(b)(1)(iii)

because “the [60-]day period [began] to run upon the date of the underlying

judicial decision” and prisoner filed PCRA petition more than 120 days after

decision was filed); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super.    2007)     (same),     appeal        denied,    932      A.2d   74    (Pa.     2007);

Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001) (same),

appeal    denied,    863     A.2d      1141     (Pa.    2004).5      The      release    of   a

newly-recognized constitutional right into the public domain is at least as

____________________________________________


5
   I realize, of course, that legal decisions are not facts and that
§ 9545(b)(1)(ii) is distinct from § 9545(b)(1)(iii). Nevertheless, the fact
that our Supreme Court has denied further review in this line of cases at
least tacitly suggests that it is disinclined to formulate a special
accessed-based accommodation for pro se petitioners in cases invoking
timeliness exceptions under the PCRA, as the Majority has done in the
instant matter.



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sporadic and unpredictable as the emergence of newly-discovered facts into

the public sphere. In the former context, however, this Court consistently

requires that a pro se petition be filed within 60 days of the filing date of the

decision. The Majority’s decision relieves pro se petitioners from this settled

obligation in the context of § 9545(b)(2)(ii), even though Appellant never

alleged that the lack of access to public records frustrated any investigative

effort he undertook.

      Third, the Majority’s approach creates different classes of petitioners

without fact-based justification. In this case, the Majority exempts all pro se

petitioners from our Supreme Court’s firmly rooted public records rule. This

approach favors pro se petitioners over other members of the potential PCRA

petitioner class without a rational basis.    On its face, the Majority’s rule

incentivizes petitioners to forego the retention of counsel, even if it is within

their means.    Moreover, prospective petitioners who are represented by

counsel, whether incarcerated or on parole or probation, are not entitled to

the benefit of the Majority’s rule, even if public information may be

challenging for them to obtain. Neither § 9545(b)(1)(ii) nor any decisional

law, until now, expressly condition favorable treatment on a petitioner’s pro

se status in the manor endorsed by the Majority. I do not think it wise to

embark on such a course.      See Commonwealth v. Watts, 23 A.3d 980,

983 (Pa. 2011) (PCRA “confers no authority upon this Court to fashion ad

hoc equitable exceptions to the PCRA time-bar[.]”). Instead, I would follow


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an approach that considers whether, consistent with settled precedent, a

petition pleads and proves due diligence or explains why new facts could not

have been uncovered with the exercise of due diligence, as the PCRA

contemplates.

      In part, the Majority rationalizes the adoption of its new rule by

asserting that the Commonwealth is free to come forward with proof that

Appellant    possessed       access   to     public   records        such   as    Goodwine’s

expungement        motion.      Majority      Opinion       at     19   (“Absent    evidence

demonstrating Appellant’s access to the contents of Goodwine’s criminal

docket,     the   public   records    rule    does    not        apply.”)   and    n.7   (“The

Commonwealth is free, of course, to adduce evidence sufficient to establish

[access to public records]. 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 [newly]-discovered facts exception to the PCRA timeliness

requirement (just as the general public records rule works where the

petitioner is represented by counsel).”). I do not believe that this answers

the questions relating to due diligence raised by this appeal. In truth, the

Majority’s reallocation of the burden of proof in PCRA cases is a poor

compromise for its election to relax the diligence expected of a pro se

petitioner who seeks relief years after the deadline for filing a petition has

passed.




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      The law is settled that a PCRA petitioner (pro se or counseled) always

carries the burden of pleading and proving that he exercised diligence to

uncover the new information on which he relies. Without qualification, our

Supreme Court has made this point unmistakably clear:                “We have

repeatedly stated it is the [petitioner’s] burden to allege and prove that

one of the timeliness exceptions applies.”     Commonwealth v. Edmiston,

65 A.3d 339, 346 (Pa. 2013) (citation omitted) (emphasis added), cert.

denied, Edmiston v. Pennsylvania, 134 S.Ct. 639 (U.S. 2013); Williams,

105 A.3d at 1240; Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa.

2008); Brown, 111 A.3d at 176. If Appellant is to be awarded a hearing to

determine whether the contents of Goodwine’s motion were undiscoverable

despite the exercise of due diligence, then it is his burden to allege

circumstances that raise a genuine issue regarding that assessment, for that

is what it means to shoulder a burden under the PCRA. Edmiston, supra.

It is not the function of this Court to rewrite the law in an effort to salvage a

legally defective petition.   See Watts, supra at 15.        Since his petition

demonstrated conclusively that he took no action for four years to discover

publicly available information generated by Goodwine, it is obvious that

Appellant failed to discharge his burden under the legal standards that

prevailed at the time of filing.

      Not only does the Majority impermissibly reallocate the burdens of

pleading and proof in PCRA cases, it does so without offering interpretive


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guidance as to how subjective elements factor into the due diligence inquiry.

The Majority allows the Commonwealth to adduce evidence to establish a

pro se petitioner’s access to public information, but does not explain

precisely what the Commonwealth must demonstrate in order to satisfy its

new burden.         For example, to establish sufficient access to public

information, must the Commonwealth prove 60 continuous days of access to

an open prison library, an available prison legal aide, a working computer

system, and a serviceable internet connection capable of accessing public

court dockets?       If so, must the Commonwealth also prove that these

resources were available at times when the petitioner was not in the

infirmary or when the prison was not on lock down? How far into the past

will the Commonwealth’s new obligation extend? Here, the Commonwealth

will have to prove access to public information for a specific petitioner at a

specific facility6 extending approximately five years into the past. In future

cases, will the Commonwealth need to prove access as far as 10 or 15 years

into the past? The pro se exception adopted by the Majority is not limited to

recently-disclosed public information; hence, the scope and contours of this

new duty imposed upon the Commonwealth under the Majority’s ruling is

entirely undefined and potentially quite onerous.         The difficulties in
____________________________________________


6
  Of course, proving access to public information for petitioners who have
been transferred during their time in prison or who have relocated while on
parole or probation will present challenges that are more complicated for the
Commonwealth.



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implementing such a potentially far-reaching duty militate strongly in favor

of continuing to       follow    our   Supreme   Court’s objective     approach to

interpreting § 9545(b)(1)(ii).

      Finally, the Majority’s suggestion that Appellant had “no reason” to

initiate an inquiry is unavailing. In support of its determination that nothing

compelled Appellant to investigate exculpatory facts generated by Goodwine,

the Majority relies heavily on the timing and contents of Goodwine’s motion.

See Majority Opinion at 18-19.             In particular, the Majority notes that

Goodwine filed his motion more than ten years after Appellant’s judgment of

sentence became final.          Id. at 19.   After such an extended period, the

Majority finds it neither “realistic nor reasonable” to expect Appellant to

continue to search public records to ascertain whether Goodwine may have

disclosed      potentially   exculpatory     information   regarding    Appellant’s

convictions. Id. The Majority also cites the contents of Goodwine’s motion,

which alleged that Goodwine was advised to forego a self-defense claim at

trial and that he instead chose not to testify. Relying on these allegations,

the Majority concludes that, “Goodwine’s silence at trial (and his acquittal of

the murder charges) eliminated any reasonable expectation [on the part of

Appellant] that [Goodwine] would, thereafter, publicly acknowledge his

guilt.”   Majority Opinion at 18.        Ultimately, the Majority concludes that

Appellant had “no reason to seek out facts in support of a claim for collateral

relief.” Id.


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        The Majority also finds fault with the PCRA court’s assessments

relating to the factors that could have triggered Appellant’s investigation of

exculpatory facts.    First, the Majority criticizes the PCRA court’s refusal to

credit Appellant’s claim that the Pennsylvania Innocence Project approached

him in May 2013 without solicitation.         Id.   The Majority asserts that the

PCRA court overstepped the bounds of its discretion by “mak[ing] a

credibility finding in a vacuum.”     Id.    The Majority also rejects the PCRA

court’s determination that Appellant must have known previously that

Goodwine murdered Seth Floyd because the jury convicted both men of

conspiracy. Id. Here, the Majority rejects the PCRA court’s conclusions in

light of Appellant’s claims of innocence and the absence of a fully developed

factual record. Id.

        Based upon my own extensive review of the certified record in this

case, I find no       error   or   abuse    of discretion in the   PCRA court’s

determinations. Furthermore, as I shall detail below, I find an ample basis

on which to conclude that Appellant had every reason to be particularly

vigilant of Goodwine’s criminal record filings since there was no more likely

source of exculpatory information.

        The record reveals that the PCRA court presided over Appellant’s

and Goodwine’s joint jury trial, which commenced on September 21,

1993.    At trial, a number of witnesses testified as to their knowledge of

Floyd’s murder, including medical experts, Allegheny County Correctional


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Officers, and several inmates at the jail. Correctional Officer Gary Fluman

testified that on March 9, 1993, at approximately 12:15 p.m., an inmate

summoned him to a cell in the Allegheny County Jail. N.T., 9/22/93, at 254.

Upon arriving at the cell, Officer Fluman observed a body covered by a

mattress and bedding. Id. at 255. Officer Fluman removed the bedding and

mattress and discovered Floyd’s body tied by the throat with a ligature that

was attached to a chain that held the bed to the wall.7 Id.    The officer did

not detect a pulse. Id.

       Dr. Leon Rozin, a forensic pathologist with the Allegheny County

Coroner’s Office, testified regarding his findings following an autopsy on

Floyd’s body.       In addition to minor injuries, Dr. Rozin observed signs

showing the use of a ligature on Floyd, including embedded markings on the

victim’s neck. N.T., 9/24/93, at 694-703. Based upon his examination, Dr.

Rozin concluded that Floyd died as a result of asphyxiation that could have

resulted from the ligatures placed around Floyd’s neck. Id. at 701-702. Dr.

Rozin also opined that it would have taken between three to five minutes to

____________________________________________


7
  Detective Gary Tallent testified that he processed evidence recovered from
Floyd’s jail cell. N.T., 9/21/93, at 374-375. In particular, Detective Tallent
recovered a ligature device fashioned from a torn bed sheet and strands
from a mop. Id. at 376-377. Detective Tallent also recovered a second
ligature device made from a pink and white shoelace, which had been placed
around Floyd’s neck. Id. at 377. Detective Tallent noted that Floyd had a
black athletic shoe on his left foot and that the matching right shoe was
located on the floor of Floyd’s cell. Id. There were no shoelaces in the black
athletic shoes. Id.



                                          - 20 -
J-E04008-14


kill   the   victim   through   strangulation   but   that   he   would   have   lost

consciousness after the first or second minute. Id. at 703.

        Micah Goodman was among the inmates who testified that he saw

Appellant, Goodwine, and Floyd engaged in what he thought was wrestling in

Floyd’s cell on the day of the murder. N.T., 9/23/93, at 492. Appellant and

Goodwine were standing behind Floyd pushing him on his bed and holding

him down, while Floyd appeared to be trying to free himself.                 Id. at

493-494.       Approximately ten to 15 minutes later, Goodman observed

Appellant and Goodwine running down the steps in the jail. Id. at 501. A

second inmate, Marvin Harper, confirmed Goodman’s testimony. He testified

that as he walked past Floyd’s cell, he heard scuffling inside and saw two

men, whom he identified at trial as Appellant and Goodwine, struggling with

a third man on a bed. Id. Edwin Wright, a third inmate, identified Appellant

and Goodwine as being in Floyd’s cell around lunchtime on the day of the

murder. Id. at 449-450. Inmate Gregory McKinney testified that Appellant

admitted that he choked and suffocated Floyd with a plastic bag and then

tied him to his bunk bed to make it appear as though he had committed

suicide. Id. at 619; N.T., 9/24/93, at 628. Inmate Warren Parrott testified

that, ten to 14 days before Floyd’s murder, he overheard Appellant talking

with Goodwine about deferring a transfer so that they could get together and

“fix” a situation that had arisen with an individual from California, referring

to Floyd. N.T., 9/23/93, at 528-546. Parrott understood this conversation


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J-E04008-14


between Appellant and Goodwine as a plan to kill Floyd.       Id. at 546.   In

addition, inmate William Johnson described Appellant and Goodwine as

“partners” who were in each other’s company “all the time.” Id. at 600.

      Based on the foregoing testimony from the certified record in this

appeal, I am unable to agree with the Majority’s determination that the

PCRA court overstepped the bounds of its discretion by making credibility

assessments in a vacuum or by prematurely reaching factual conclusions in

the absence of a fully developed record.      This Court acknowledges that,

“[g]enerally, it is deemed preferable for the same judge who presided at trial

to preside over the post-conviction proceedings since familiarity with the

case will likely assist the proper administration of justice.” Commonwealth

v. Martorano, 89 A.3d 301, 307 (Pa. Super. 2014). Here, the PCRA court

presided over the joint trial of Appellant and Goodwine and had the

opportunity to hear the testimony of the Commonwealth’s 19 witnesses,

including medical experts, investigating detectives, jail guards, inmates, and

others.   This evidence, transcribed in over 1000 pages of trial testimony,

overwhelmingly established Appellant’s direct participation in Floyd’s ligature

strangulation, as well his involvement in a criminal conspiracy to commit

murder with Goodwine. The definitive proof of Appellant’s guilt, of which the

PCRA court was undoubtedly aware, warranted the court’s skepticism toward

Appellant’s professed lack of knowledge about the timing and content of

Goodwine’s criminal filing. In the face of such an abundant record, I cannot


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J-E04008-14


fault the PCRA court for using its extensive knowledge and familiarity with

the facts in this matter in reaching a result that fully complied with

prevailing law.

      In addition, based upon the extensive trial testimony that linked

Appellant and Goodwine, I also believe that our recent decisions, on which

the Majority heavily relies, do not support the conclusion that Appellant is

entitled to the benefit of a sweeping per se rule which holds that he is

entitled to relief based solely upon his pro se status. The Majority cites our

decisions in Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super.

2014) (en banc), appeal granted, 2014 WL 6991663 (Pa. 2014) and

Commonwealth v. Davis, 86 A.3d 883 (Pa. Super. 2014). These cases,

however, are factually distinguishable.

      In Medina, this Court held that a petitioner, who relied on the

personal recantation of trial testimony by a witness for the Commonwealth,

met the newly-discovered facts exception. Central to our conclusion was the

fact that the petitioner first learned of the witness’ recantation on or after

October 18, 2006 when the witness transferred to the same prison facility

that housed the petitioner and informed him of police coercion. Medina, 92

A.3d at 1217-1218. There was no other source for the recantation evidence

and the petitioner had no reason to look for it.        Id.   The record also

confirmed that the petitioner filed his petition on December 5, 2006, within

60 days of the date he initially learned of the witness’ recantation. Id.


                                    - 23 -
J-E04008-14


       Unlike the petitioner in Medina, Appellant here relied on a public court

filing by his co-defendant Goodwine to establish an exception to the PCRA’s

time bar.    In contrast to the Commonwealth witness at issue in Medina,

whose coercion at the hands of police was unknown and unknowable,

Appellant here was well aware of his co-defendant’s involvement in the case

at the time the murder occurred.                Moreover, contrary to the Majority’s

conclusion, I believe that Goodwine’s acquittal gave him license to make

exculpatory disclosures without risk of criminal prosecution.8            Combining

Appellant’s awareness of this fact with the precise factual posture of this

case, Goodwine was the most, if not the sole, promising source of

exculpatory evidence supportive of Appellant’s innocence claim.                 This

considerably narrowed the scope of Appellant’s information search from “the

entirety of the public domain” to the criminal docket filings of his former

criminal confederate, Goodwine.                Since Appellant had every reason to

monitor Goodwine’s court filings from the moment of conviction in 1993,

Medina is distinguishable and does not mandate relief.

       Davis, too, is inapposite. In Davis, a panel of this Court held that a

petitioner properly invoked timeliness exceptions found at §§ 9454(b)(1)(i)

____________________________________________


8
  “Under the Double Jeopardy Clauses of both the United States and
Pennsylvania Constitutions, as well as under Pennsylvania Crimes Code, a
second prosecution for the same offense after acquittal is prohibited.”
Commonwealth v. DeLong, 879 A.2d 234, 238 (Pa. Super. 2005), appeal
denied, 889 A.2d 1213 (Pa. 2005).



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J-E04008-14


and (ii) where he acted diligently under the circumstances and “filed his pro

se petition within 60 days of receiving [the] initial affidavit that instigated

[his] discovery of all of [his] claims.” Id. at 891. In so holding, we noted

that while trial transcripts containing evidence of a witness’ perjurious

statements against the petitioner constituted information within the public

domain, the petitioner nevertheless acted with due diligence under the

circumstances since neither the witness nor the transcripts could be found.

Id. In addition, focusing exclusively on the petitioner’s trial in Davis, the

petitioner had no reason to know of enticements bestowed upon the witness

by the Commonwealth. These facts distinguish Davis in that there can be

no dispute in the present case that Appellant knew of Goodwine’s role and

acquittal   in   the   murder     as   early   as   1993.   Moreover, Goodwine’s

expungement motion was, in fact, available on a public court docket, as

evidenced by its recovery through the efforts of the Pennsylvania Innocence

Project. Hence Davis, like Medina, does not support relief.9


____________________________________________


9
  The Majority also cites Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007) to support its contention that Appellant is entitled to relief. Bennett,
however, never involved an express holding that petitioners are entitled to
special, access-based accommodations where they lack the benefit of
counsel. Instead, the Supreme Court concluded that an order dismissing the
petitioner’s first PCRA appeal was only a public record in the broadest sense
because such orders are not sent directly to the prisoner but only to counsel
on the assumption that counsel will inform his client of the court’s action.
The Court then noted that the logic of this assumption breaks down where
counsel abandons his client. Thus, the Court declined to treat the order as a
(Footnote Continued Next Page)


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J-E04008-14


      For each of the foregoing reasons, I would hold that Appellant's second

petition is untimely on its face and that he failed to plead and prove a

statutory exception to the PCRA's jurisdictional time-bar. Therefore, in my

view, the PCRA court correctly determined that it lacked jurisdiction to

consider Appellant's substantive claims. Accordingly, I dissent.

      President Judge Gantman and Judge Shogan join this dissenting

opinion.




                       _______________________
(Footnote Continued)

public record where the prisoner’s only means of access to the information
was restricted by counsel’s abandonment. Id. at 1266.

That is not the situation before us. Here, Goodwines’ expungement motion
resided on a public trial court docket, available to all who sought it. A third
party, the Pennsylvania Innocence Project, recovered the document and
transmitted it to Appellant. Appellant has offered no explanation for why he
could not obtain Goodwines’ expungement papers as the Pennsylvania
Innocence Project did. Hence, the concern that confronted our Supreme
Court in Bennett is simply not present here. Appellant, unlike Bennett,
acted pro se from the initiation of the instant proceedings and, thus, never
had any expectation of counsel’s assistance. While the rule in Bennett
might apply in cases where counsel’s unanticipated abandonment defeats a
petitioner’s legitimate expectations, it has no application where the
petitioner initiates the proceedings pro se and expects to continue in that
capacity.

The Majority’s approach effectively allows Appellant to transfer his duty of
due diligence under the PCRA to a third party and, in turn, to rely on the
results of the third party’s efforts long after applicable deadlines have
passed.    I believe that such an approach is entirely inconsistent with
prevailing interpretations of the PCRA’s timeliness requirements.



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