J-S68038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                           Appellee

                     v.

JOHN MILLER,

                           Appellant                      No. 3563 EDA 2014


              Appeal from the PCRA Order November 13, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1010301-1997


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:

                                                   FILED December 18, 2015

      I cannot agree with the Majority when it concludes that Appellant

cannot   avail   himself    of   either   the   “newly   discovered    fact”    and/or

“governmental     interference”       exceptions   to    overcome     the      time-bar

enumerated in the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9545(b)(1), with regard to new evidence concerning David Williams’

(“David”) statement to police falsely implicating Jack Williams (“Jack”) in an

unrelated homicide, which occurred within hours of David’s implicating

Appellant in the murder of Anthony Mullen (“Mullen”).                 Accordingly, I

respectfully dissent in part, and concur in part.

      Appellant was convicted in 1998 of murdering Mullen in 1996, based

on his purported confession to David, and information received from Michael
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Arnold (“Arnold”) concerning the alleged murder weapon.1            At Appellant’s

trial, David fully recanted his statement to police implicating Appellant.

Arnold partially recanted his prior statement, testifying at trial that he did

not know the caliber of the firearm in question, and that it was inoperable

when it came into Appellant’s possession. Nevertheless, the jury disbelieved

the recantations, and convicted Appellant of second-degree murder and

related offenses.        Subsequently, David has repeatedly recanted the

statement he initially made to police implicating Appellant; indeed, David

maintains that he murdered Mullen, and had framed Appellant for the killing.

Arnold has also now fully recanted.2           These recantations were the primary

basis for Appellant’s previous, unsuccessful PCRA petitions. The impetus for

Appellant’s current PCRA petition, his fourth, is new information concerning

David’s statement to police falsely implicating Jack in an unrelated

homicide,3 and a new iteration of Arnold’s previous recantations.          David’s
____________________________________________


1
  The murder weapon was never recovered by the police. However, Arnold’s
initial statement to the police indicated that Appellant had come into
possession of Arnold’s weapon, possibly a 9mm pistol, when Arnold had
abandoned that weapon when approached by police two months’ prior to
Mullen’s murder.     The Commonwealth’s evidence revealed that 9mm
cartridge casings were found near Mullen’s body.
2
  Arnold wrote a letter in 2011 claiming that he had lied at Appellant’s trial.
Arnold subsequently composed an affidavit corroborating his statements in
that letter.
3
  Relatedly, Appellant also contends that “David later told Jack that he had
made a false statement inculpating Jack in exchange for leniency in his
robbery case.” Majority Opinion, at 12 (citing Appellant’s Brief, at 24).



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statement regarding Jack was given to police on the same day that David

implicated Appellant for the murder of Mullen and, thus, it tends to

corroborate David’s and Arnold’s recantations.

     Appellant believes, reasonably, that if the jury was aware that David

has falsely implicated another person in an unrelated murder within hours of

implicating Appellant, they would have been more inclined to believe David’s

recantation and disbelieve his initial statement to police. He makes similar

claims with regard to Arnold’s new recantation.

     As the Majority correctly acknowledges, Appellant’s current PCRA

petition, his fourth, is facially untimely.   Under the PCRA, all petitions

seeking collateral relief must be filed within one year of the date the

judgment of sentence becomes final.        Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007). There are three statutory exceptions to this

time-bar:

     (b) Time for filing petition.--

     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, unless the petition alleges and the
     petitioner proves that:

        (i) the failure to raise the claim previously was the result of
        interference by government officials with the presentation of
        the claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United
        States;

        (ii) the facts upon which the claim is predicated were
        unknown to the petitioner and could not have been
        ascertained by the exercise of due diligence; or


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        (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). Additionally, any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Appellant avers that his claim regarding David’s false accusation

implicating Jack meets both the “newly discovered fact” and “governmental

interference”   exceptions     set    forth   in   sections   9545(b)(1)(ii)   and

9545(b)(1)(i), respectively.         With regard to Arnold’s new recantation

evidence, Appellant invokes only the “newly discovered fact” exception. As

to this latter issue, I concur with Majority that the PCRA court’s dismissal of

this claim without a hearing was free of legal error and supported by the

record. Thus, my dissent is confined to the issues related to David’s falsely

accusing Jack of committing an unrelated homicide on the same day that

David first implicated Appellant in Mullen’s murder.

      First, with respect to the “newly discovered fact” exception, the

Majority echoes the ruling of the PCRA court, construing Appellant’s “newly

discovered fact” as merely a “new source of a previously known fact.”

Majority Opinion, at 13; see Commonwealth v. Johnson, 863 A.2d 423,

427 (Pa. 2004) (“The after-discovered evidence exception, however, focuses

on newly discovered facts, not on a newly discovered or a newly willing

source for previously known facts.”) (emphasis in original), abrogation on


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different grounds recognized by Commonwealth v. Bennett, 930 A.2d

1264 (Pa. 2007). I disagree with the application of this principle to the facts

before us.     The Majority conflates or confuses a new fact—David’s false

accusation regarding Jack—with the defense theory that David falsely

implicated Appellant in the murder of Mullen.     Even if one construes that

defense theory as a fact, it is patently not the same fact as David’s false

statement regarding a different person and a different murder.4        Thus, I

would not have affirmed the PCRA court’s dismissal of this issue, and would

have instead moved on to consider the due diligence prong of the “newly

discovered fact” exception. As discussed below, I believe that resolution of

that prong requires that we remand for a hearing.

       Second, regarding the “government interference” exception, the

Majority relies squarely on the PCRA’s court’s reasoning for denying
____________________________________________


4
  The Majority apparently disregards this distinction by invoking the notion
that the “ultimate fact” at issue is David’s false accusation of Appellant, and
that the new fact regarding David’s false accusation of Jack merely serves to
reinforce or corroborate that “ultimate fact.”        Majority Opinion, at 14
(“Appellant has known the ultimate fact that David falsely accused Appellant
of Mullen’s homicide since his preliminary hearing in October [of] 1997.”). I
believe, however, that this over-generalization puts our interpretation and
application of the “newly discovered fact” exception on a slippery slope
towards oblivion. One might also construe Appellant’s ‘non-guilt’ as the
“ultimate fact” and, thus, render any new evidence challenging that ultimate
fact as merely ‘new sources of a previously known fact.’ Thus, while we
should endeavor to not permit trivial modifications of previously known facts
to trigger the “newly discovered fact” exception of the PCRA’s time-bar, we
must also avoid over-generalizing so as to effectively preclude any new
evidence from meeting the exception. Instantly, I believe the Majority
treads too deeply into the latter camp.



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Appellant’s claim without a hearing, which essentially posits that Appellant

could have simply asked pertinent questions of David to discover his false

accusation regarding Jack at an earlier time.    PCRA Court Opinion (PCO),

1/30/15, at 11. The PCRA court apparently believes that such questioning

should have or could have occurred earlier because Appellant “had known

[David] since childhood and [David] had been actively cooperating with

[Appellant’s] efforts to exonerate himself since at least 2003.” Id.

      I view this as little more than speculation.   The PCRA court fails to

explain how it could come to this fact-intensive conclusion without the

benefit of a hearing.   Certainly, it may be that David and Appellant knew

each other since childhood.     And it is apparent that David assisted in

Appellant’s previous attempts for PCRA relief, as he testified on Appellant’s

behalf at prior PCRA hearings.     However, Appellant believes that David

murdered Mullen and then falsely accused him of that murder. One might

reasonably doubt that the nature of their relationship is amicable in the way

intimated by the PCRA court, regardless of David’s prior assistance. Indeed,

as Appellant argues: “[Appellant] is incarcerated. He had no ability to speak

to [David], let alone force him to come forward with information before

[David] himself decided that he was ready.” Appellant’s Brief, at 26. These

conflicting narratives should have been resolved at an evidentiary hearing.

      Regardless of these factual discrepancies, I would reject the PCRA

court’s legal conclusion as it stands. Due diligence analysis must be “fact-

specific, to be determined case-by-case; it does not require perfect vigilance

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and punctilious care, but merely a showing that the [party] has put forth a

reasonable effort.”     Commonwealth v. Selenski, 994 A.2d 1083, 1089

(Pa. 2010).      I do not believe that the PCRA court’s legal analysis or the

factual record adequately supports a finding that Appellant failed to act with

due diligence.

      It is only through the clarity of hindsight that one can conceive of

simple, pertinent questions which might have extracted the new fact from

David at an earlier time. If one already knows the answer sought, then the

appropriate question(s) to elicit that answer easily come to mind. However,

when the fact—or even the nature of that fact—is not known beforehand,

then the pertinent questions are not so “easily obtained.” PCO, at 11.

      Moreover, whether David would have answered honestly at a prior

time is unknown.      If one thing is clear from the long history of this case,

David has not been the most truthful of witnesses. However, even had he

been inclined to answer honestly in the past, it is not at all clear that, as the

PCRA court speculates, ‘simple’ questions regarding his interactions with

authorities would have spurred him to reveal his accusations regarding Jack.

David might have thought that his false statement to police regarding a

different person and a different crime were wholly unrelated to Appellant’s

case. While we might expect an attorney to recognize the relevance of that

information, I am reluctant to presume it of a layperson.        Again, perfect

hindsight about the potential information available from David tends to

inflate our perception of what was probable or likely to have been revealed

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beforehand. Indeed, for all we know, David may have failed to answer the

most direct and on-point questions likely to elicit the pertinent information

long before this newly discovered information ultimately came to light.

      I believe the PCRA court’s due diligence analysis is erroneous and not

adequately supported by the record.       Accordingly, I would remand this

matter for a hearing to determine if Appellant acted with due diligence for

purposes of resolving whether he can satisfy either the “newly discovered

fact” and/or “government interference” exception to the PCRA’s time bar.

     I respectfully dissent.




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