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.

OPINION BY BENDER, P.J.E.:                         FILED AUGUST 25, 2015

      Shawn Lamar Burton (Appellant) appeals pro se from the order

entered August 27, 2013, denying as untimely his petition for relief filed

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

We conclude that the record before us is insufficient to determine whether

Appellant’s petition satisfies the after-discovered facts exception to the one-

year time requirement of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii). In so

doing, we clarify the due diligence required of untimely petitioners and

recognize a limited exception to the “public records” rule, which presumes

that petitioners have access to information available in the public domain.

Accordingly, we vacate the PCRA court’s order and remand for an

evidentiary hearing.
J-E04008-14


      In September 1993, a jury convicted Appellant of first-degree murder

and conspiracy in connection with the strangulation death of Seth Floyd in

the Allegheny County Jail.    Thereafter, the court imposed the mandatory

sentence of life imprisonment. Appellant’s co-defendant, Melvin Goodwine,

was convicted of conspiracy but acquitted of the murder charge.

      Appellant timely appealed from the judgment of sentence, and this

Court affirmed.     See Commonwealth v. Burton, 688 A.2d 1225 (Pa.

Super. 1996) (unpublished memorandum).            On August 15, 1997, the

Pennsylvania     Supreme   Court   denied    allowance   of    appeal.     See

Commonwealth v. Burton, 700 A.2d 437 (Pa. 1997).              Appellant did not

petition the United States Supreme Court for writ of certiorari.

      In August 1998, Appellant filed pro se his first PCRA petition. Counsel

was appointed but subsequently withdrew due to a disagreement with

Appellant.      Appellant proceeded pro se.     Thereafter, the PCRA court

dismissed his petition in April 2000.       New counsel was appointed and

effectuated an appeal, which was dismissed in November 2001 for failure to

file a brief.     However, counsel successfully sought reinstatement of

Appellant’s appellate rights nunc pro tunc and timely appealed.

      On review, the PCRA court’s failure to conduct an on-the-record

colloquy to determine whether Appellant properly waived his right to his first

PCRA counsel resulted in remand by this Court and further proceedings

below not relevant to this appeal. Eventually, the PCRA court again denied


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Appellant’s first petition in December 2005.        This Court affirmed, see

Commonwealth v. Burton, 924 A.2d 688 (Pa. 2007) (unpublished

memorandum), and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal. See Commonwealth v. Burton, 936 A.2d

39 (Pa. 2007).

      On May 30, 2013, Appellant purportedly received a letter from the

Pennsylvania Innocence Project (dated May 23, 2013).         Enclosed with the

letter were copies of (1) a motion to expunge criminal record filed by co-

defendant Melvin Goodwine, in July 2009, and (2) a court opinion thereafter

denying the motion. In his motion to expunge, Goodwine averred that (1)

he (Goodwine) killed Seth Floyd in self-defense, (2) he was advised not to

use this defense at trial, and (3) as a result, an innocent man went to jail for

a crime that he committed. Based upon these court records, the Innocence

Project letter suggested that Appellant pursue collateral relief.

      On July 11, 2013, Appellant filed pro se his second PCRA petition. On

August 6, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent

to dismiss Appellant’s petition without a hearing. On August 27, 2013, it

dismissed the petition. Appellant responded untimely to the court’s Rule 907

notice on September 9, 2013. Nevertheless, Appellant timely appealed and

filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued

an opinion.




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       In July 2014, a divided panel of this Court vacated the PCRA Court’s

order and remanded for an evidentiary hearing. The Commonwealth filed a

timely application for reargument en banc. We granted the Commonwealth’s

application and withdrew the July panel memorandum.               See Order,

09/08/2014.

       Appellant raises the following issues:

       [1.] Whether the PCRA court erred in denying [Appellant’s] post-
       conviction petition as untimely filed when [Appellant] established
       that his [after-discovered facts] claim[] [was] within the [plain
       language of the timeliness exception set forth at] 42 Pa.C.S.A. §
       9545(b)(1)(ii) and section 9545(b)(2)?

       [2.] Whether [Appellant] is entitled to a new trial, or remand for
       an evidentiary hearing based upon the personal documents of
       Melvin Goodwine[‘s] admitting that the petitioner did not
       participate in the crimes charged in this case, which [after-
       discovered fact] was provided to [Appellant] by Pennsylvania
       Innocence Project?

       [3.] Whether the district attorney’s [] failure to disclose
       exculpatory evidence to [Appellant] proving his innocence[]
       violates the prosecutor’s obligation under the Fourteenth
       Amendment’s Due Process Clause?

Appellant’s Substitute Brief at v-vi.1

____________________________________________


1
   Before the original panel assigned to this case, Appellant specifically
claimed both the government interference exception, see 42 Pa.C.S. §
9545(b)(1)(i), and the after-discovered facts exception, see 42 Pa.C.S. §
9545(b)(1)(ii).   Appellant’s Original Brief at 10.     Appellant’s current
argument fails to address the government interference exception. See
generally Appellant’s Substitute Brief. Thus, it appears that Appellant has
abandoned this particular claim before the en banc panel, and we will not
address it.

(Footnote Continued Next Page)


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      We review an order denying a collateral relief under the PCRA to

determine whether evidence of record supports the findings of the PCRA

court and whether its legal conclusions are free of error. Commonwealth

v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014). “The PCRA court's credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court's legal

conclusions.”   Id. (quoting Commonwealth v. Roney, 79 A.3d 595, 603

(2013)).

      In this case, the PCRA court dismissed Appellant’s petition without a

hearing.    See PCRA Court Order, 08/27/2013, at 1 (citing in support

Pa.R.Crim.P. 907).        There is no absolute right to an evidentiary hearing.

See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).

On appeal, we examine the issues raised in light of the record “to determine

whether the PCRA court erred in concluding that there were no genuine



                       _______________________
(Footnote Continued)

In his second and third issues, Appellant asserts substantive claims for
collateral relief, claiming newly discovered, exculpatory evidence, improperly
withheld by the district attorney’s office. See Appellant’s Substitute Brief at
4-10. In light of our disposition, and the procedural posture of this case, we
do not reach these claims. See Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa. 2008) (recognizing potential congruence between a Brady
claim and Section 9545(b)(1)(i), but noting their distinct requirements); see
also Commonwealth v. Bennett, 930 A.2d 1264, 1271-72 (Pa. 2007)
(admonishing this Court to avoid imparting substantive requirements on the
analysis of timeliness exceptions).




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issues of material fact and in denying relief without an evidentiary hearing.”

Id.

      Under the PCRA, all petitions seeking collateral relief must be filed

within one year of the date the judgment of sentence becomes final. See

Bennett, 930 A.2d at 1267; 42 Pa.C.S. § 9545(b)(1).           There are three

statutory exceptions:

      (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

            (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).   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).

      Here, Appellant’s judgment of sentence became final on November 13,

1997, ninety days after the Pennsylvania Supreme Court denied Appellant’s



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petition for allowance of appeal.   See 42 Pa.C.S. § 9545(b)(3) (providing

that judgment of sentence becomes final at the conclusion of direct review

or the expiration of the time for seeking the review); U.S.Sup.Ct.R. 13

(requiring the filing of a petition for writ of certiorari within 90 days)

(effective May 1, 1997). Appellant had until November 13, 1998, to file a

timely PCRA petition. Thus, his July 2013 petition was patently untimely.

      Appellant acknowledges that his petition was untimely but asserts that

he qualifies for the “after-discovered facts” exception to the timeliness

requirement. In order to qualify, a petitioner must establish that (1) he did

not know the facts upon which he based his petition, and (2) he could not

have learned those facts earlier with the exercise of due diligence. See 42

Pa.C.S. § 9545(b)(1)(ii).    According to Appellant, his reliance upon the

contents of Goodwine’s motion to expunge meets these requirements. We

agree.

      Fundamentally, at issue here is the appropriate level of diligence

required of an untimely PCRA petitioner.      Section (b)(1)(ii) requires “due

diligence,” without explanation or definition of the term.         This omission

poses little difficulty, however, as Pennsylvania courts have interpreted

consistently the concept of due diligence in different contexts.

      In 1893, for example, reviewing a financial dispute in which the

plaintiff failed to collect on a note past due for seven months, the

Pennsylvania Supreme Court affirmed a lower court ruling, leaving the


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question of due diligence to the fact finder. Tissue v. Hanna, 27 A. 1104,

1105 (Pa. 1893). The Court noted the following:

     A contract [of guaranty] creates only a contingent liability; and it
     becomes absolute only by due and unsuccessful diligence to
     obtain satisfaction from the principal, or by circumstances that
     excuse diligence. … But every case is to be judged by its
     circumstances.

Id. (emphasis added).

     More recently, this Court evaluated the efforts of police officers

attempting to locate and apprehend a criminal defendant for speedy trial

purposes. Commonwealth v. Hinton, 409 A.2d 54, 57 (Pa. Super. 1979).

We concluded:

     It seems clear that the test [for due diligence] is not a venture
     into hindsight reasoning …. The matter of availability and due
     diligence must be judged by what was done by the authorities
     rather than what was not done. The standard of due diligence
     demands only reasonable efforts.

Id. (some emphasis added).

     In the specific context of the PCRA, our state appellate courts have

been more circumspect. Apart from citing the statutory language itself, no

published decision provided an expositive statement of the diligence required

to satisfy Section 9545(b)(1)(ii) until Commonwealth v. Williams, 35 A.3d

44 (Pa. Super. 2011).     In Williams, this Court rejected a petitioner’s

attempt to embed a request for DNA testing in an untimely PCRA petition

and clarified that “[d]ue diligence demands that the petitioner take

reasonable steps to protect his own interests.”           Id. at 53 (citing


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Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001))

(emphasis added).2

       Thereafter, we offered further guidance in Commonwealth v. Davis,

86 A.3d 883 (Pa. Super. 2014). In Davis, a jury convicted the petitioner of

robbery and first-degree murder in 1972, based in part on the testimony of

two witnesses. Id. at 885-86. Decades later, in 2008, the petitioner filed a

PCRA petition, in which he claimed to have discovered facts establishing that

both witnesses had testified pursuant to an undisclosed agreement with the

Commonwealth and that one of the witnesses had committed perjury. Id.

at 886. Notably, during the petitioner’s trial, both witnesses had denied any

such agreement. Id. at 885-86.

       The PCRA court denied relief, holding that the petitioner’s facts were

publicly available in several court transcripts “via an exercise of due

diligence,” and therefore, did not satisfy the requirements of Section

9545(b)(1)(ii).     Id. at 889 (quoting the PCRA court opinion).   This Court

disagreed.     We observed that the petitioner’s efforts were triggered upon

receipt of affidavits signed by one of the witnesses.    Id.   Regarding the

undisclosed agreements with the Commonwealth, we reasoned as follows:

       At no point during the testimony of either witness did the
       Commonwealth interject to clarify that a deal or leniency was
____________________________________________


2
  In Carr, we did not define expressly the requirements of due diligence but
rather examined the facts surrounding the appellant’s efforts to pursue relief
and concluded the efforts were insufficient. See Carr, 768 A.2d at 1168.



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      offered to either[.] Therefore, [petitioner] had no reason to seek
      out transcripts of those witnesses' sentencing hearings in
      unrelated cases to look for evidence of such deals. To conclude
      otherwise would suggest that [petitioner] should have assumed
      the Commonwealth's witnesses were committing perjury, and
      the Commonwealth was improperly permitting them to do so.
      Due diligence does not require a defendant to make such
      unreasonable assumptions. See Commonwealth v. Selenski,
      606 Pa. 51, 994 A.2d 1083, 1089 (2010) (defining the due
      diligence required by the Commonwealth in Pa.R.Crim.P. 600
      issues as “fact-specific, to be determined case-by-case; it does
      not require perfect vigilance and punctilious care, but merely a
      showing that the Commonwealth has put forth a reasonable
      effort”).

      Instead, [petitioner’s] efforts were adequately diligent under the
      circumstances of this case.

Id. at 890-91 (emphasis added).

      We also addressed the petitioner’s investigation into the allegedly

perjured testimony.    The source of this fact was limited to one of the

affidavits received by the petitioner.   Id. at 889.   In it, the affiant stated

that he had revealed his perjury to a trial court in an unrelated case. The

transcripts from this unrelated case were unavailable.              Id. at 890.

Nevertheless, the PCRA court determined that the previous, public disclosure

of this perjury precluded petitioner from relying on it.      Id.     Again, we

disagreed, concluding that the petitioner acted with “sufficient diligence” and

holding that “[i]t would be unreasonable to expect a pro se prisoner such as

[petitioner] to do that which a trial court could not [i.e., locate the

transcript].” Id. at 891 (emphasis added).




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      Key in Davis was the petitioner’s receipt of an affidavit informing him

that at least one of the witnesses against him had secretly secured a

sentencing   agreement    with   the    Commonwealth   in   exchange   for   his

testimony. The affidavit served to trigger the petitioner’s investigation. This

particular circumstance was significant because the facts underlying the

petitioner’s claim were contained in a different or unrelated case.     As we

concluded, absent this trigger, “[petitioner] had no reason to seek out” facts

in support of a claim for collateral relief. Id. at 890. Of course, there were

additional factors, consistently relevant to any due diligence analysis,

including the timing of the availability of the new facts and petitioner’s pro

se status. Id. at 891.

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

2014) (en banc), the petitioner was convicted of murder in 1992, based on

the testimony of two brothers, children at the time. Id. at 1213. In 2006,

one of the witnesses recanted and claimed that a detective had coerced his

testimony. Id. at 1216-17. Based on this recantation, the petitioner sought

collateral relief. Following an evidentiary hearing, the PCRA court found the

testimony of the petitioner and the witness credible and concluded that the




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petitioner had established the after-discovered facts exception.        Id. at

1216.3

       On appeal, the Commonwealth argued that the petitioner’s complete

failure to contact the witness during the fifteen-year period following his

arrest was insufficient to establish due diligence. Id. We disagreed:

       [The petitioner] had no way of knowing what the detective said
       to the Commonwealth’s key child witnesses or that his threats
       were the reason the boys lied at trial. In addition, reasonable
       investigation could not have revealed it since even at the PCRA
       evidentiary hearing the Commonwealth’s prosecutors claimed
       they had not known of the detective’s conduct.            If the
       Commonwealth’s prosecutors did not know, [the petitioner] and
       his counsel had no reason to look for this evidence and probably
       could not have found it if they had.

Id. (adopting the analysis of the PCRA court). Thus, we concluded that the

petitioner’s efforts were reasonable under the circumstances. Id. at 1217.

       There can be no reasonable dispute that the due diligence inquiry is

fact-sensitive and dependent upon the circumstances presented.4 Moreover,


____________________________________________


3
  The credibility determination of the PCRA court was essential to our
subsequent affirmance.     Id. at 1214 (“The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court.”)
(emphasis added) (quoting Commonwealth v. Spotz, 18 A.3d 244, 259
(Pa. 2011)).
4
 Incidentally, Black’s Law Dictionary defines due diligence in the following
manner:

    Such a measure of prudence, activity, or assiduity, as is properly to be
    expected from, and ordinarily exercised by, a reasonable and prudent
    man under the particular circumstances; not measured by any
(Footnote Continued Next Page)


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although the Pennsylvania Supreme Court has yet to adopt expressly the

Selenski definition of due diligence, applied in Davis, in the context of the

PCRA, the Court has done so implicitly. See Commonwealth v. Edmiston,

65 A.3d 339, 348 (Pa. 2013) (quoting Selenski in the context of the

appellant’s argument, but ultimately rejecting a second PCRA petition as

untimely, concluding that certain photographic evidence at issue was

available at the time of trial).        Thus, we hold that due diligence requires

neither perfect vigilance nor punctilious care, but rather it requires

reasonable efforts by a petitioner, based on the particular circumstances, to

uncover facts that may support a claim for collateral relief.                  Selenski;

Medina; Davis; Williams.

      We     shall      strictly   enforce       this   requirement.          See,   e.g.,

Commonwealth v. Fahy, 959 A.2d 312, 315 (Pa. 2008). Our enforcement

is a function of both the current, jurisdictional understanding of the PCRA

timeliness requirement and the mandatory language of Section 9545(b)(1).

See Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa. 1999) (baldly

asserting   that     the   PCRA     timeliness      requirements   are   “a    matter   of

                       _______________________
(Footnote Continued)

   absolute standard, but depending on the relative facts of the special
   case.

THE LAW DICTIONARY, FEATURING BLACK’S LAW DICTIONARY FREE ONLINE
LEGAL DICTIONARY (2d ed.), http://thelawdictionary.org/due-diligence (last
visited Apr. 23, 2015) (emphasis in original).




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jurisdiction”); see also 42 Pa.C.S. § 9545(b)(1) (“Any petition under this

subchapter … shall be filed within one year ...”) (emphasis added).5

Nevertheless, strict enforcement does not elevate the level of diligence

required of a petitioner but merely describes the vigorous manner of judicial

review.

       Also relevant to our disposition is the nature of the after-discovered

facts relied upon by Appellant.           Appellant claims that he is innocent of

murder and conspiracy, citing in support the contents of a motion to

expunge criminal record filed by Appellant’s co-defendant, Melvin Goodwine,

in July 2009. At first glance it would appear that Appellant’s claim runs afoul

of Pennsylvania Supreme Court precedent holding that publicly available

information cannot predicate a timeliness exception, beyond the 60-day

grace period defined in Section 9545(b)(2). See, e.g., Commonwealth v.



____________________________________________


5
   The jurisdictional interpretation of the timeliness requirement is long-
standing.      However, it is not without controversy.             See, e.g.,
Commonwealth v. Brown, 943 A.2d 264, 272-73 (Pa. 2008) (Baer, J.,
dissenting) (suggesting that this interpretation sacrifices “fundamental rights
at the altar of finality”). Moreover, this Court has not always held to the
“strict enforcement” standard when the jurisdiction afforded us by the PCRA
is at issue. For example, it is well settled that the prisoner mailbox rule
applies to PCRA petitions. See, e.g., Commonwealth v. Chambers, 35
A.3d 34, 39-40 (Pa. Super. 2011) (applying the “prisoner mailbox rule” to a
PCRA petition); Commonwealth v. Hopfer, 965 A.2d 270, 272 n.2 (Pa.
Super. 2009) (same); Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa.
Super. 1998) (same).




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Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (“This Court has found matters of

public record are not unknown.”).6

       However, the rule is not absolute.          It must adhere to the statutory

language of Section 9545.         The requirement is that Section 9545(b)(1)(ii)

facts are “unknown to the petitioner.”               42 Pa.C.S. § 9545(b)(1)(ii)

(emphasis added). This imparts a subjective element into the due diligence

standard, easily accommodated by a reasonableness analysis, but not

accurately reflected by a bright line rule. An irrebuttable presumption that

public information cannot be “unknown” would disregard the standard of

diligence required of untimely petitioners.

       The general rule is reasonable when we may conclude that the

petitioner retains access to public information, such as when a petitioner is

represented by counsel. See, e.g., Taylor, 67 A.3d at 1247 (stating that

each of the petitioner’s three petitions for collateral relief were prepared by

counsel); Chester, 895 A.2d at 522 (stating that petitioner was represented

by counsel during pendency of his second petition); Commonwealth v.

____________________________________________


6
  See also Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006)
(rejecting as untimely a counseled PCRA petition alleging trial counsel
conflict of interest when counsel was arrested for driving under the influence
within days of making his appearance on behalf of petitioner);
Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000) (suggesting in
dicta that certain statistics underpinning a study critical of the Philadelphia
criminal justice system “were of public record [prior to petitioner’s first,
counseled PCRA petition] and cannot be said to have been ‘unknown’ to
[the] [a]ppellant”).



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Whitney, 817 A.2d 423, 424 (Pa. 2003) (noting that petitioner had the

benefit of counsel). In such cases, public records should be presumptively

knowable. However, a pro se petitioner does not have access to information

otherwise readily available to the public.     That is elementary: A PCRA

petitioner is most often incarcerated, and thus, no longer a member of the

public. See 42 Pa.C.S. § 9543(a)(1). Without counsel’s providing a conduit

to publicly available information, a presumption of access is cynical, and the

strength of the general rule falters. Thus, the Supreme Court has expressly

recognized the importance of access to the public information.

      Recall in Bennett, a petitioner was denied collateral relief. Bennett,

930 A.2d at 1266.     The petitioner timely appealed, but appointed PCRA

counsel failed to file a brief, and the appeal was dismissed by court order.

Id. Thereafter, upon discovering counsel’s abandonment, the petitioner pro

se filed a second petition. Id. The PCRA court granted relief, reinstating the

petitioner’s appellate rights nunc pro tunc. Id. at 1267. This Court quashed

the petitioner’s appeal, concluding that the second petition was untimely.

Id. The Supreme Court disagreed, concluding that counsel’s abandonment

of the petitioner was a fact, unknown to the petitioner, despite its presence

in the public record (i.e., the court order dismissing the petitioner’s appeal

was a matter of public record). Id. at 1275.

      Addressing the public records rule, the Supreme Court reasoned as

follows:


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         While the dissenting opinion [advocating strict application of the
         public records rule] is attractive in its simplicity, it does not give
         due consideration to the circumstances the instant case raises.
         The August 14th order [dismissing the petitioner’s first PCRA
         appeal] was a matter of “public record” only in the broadest
         sense.    Such orders are not sent directly to the prisoner.
         Rather, counsel is sent the notice on the assumption that
         counsel will inform his client of the court's action. In a case such
         as the instant one, it is illogical to believe that a counsel that
         abandons his or her client for a requested appeal will inform his
         client that his case has been dismissed because of his own
         failures. More importantly, in light of the fact that counsel
         abandoned Appellant, we know of no other way in which a
         prisoner could access the “public record.”13 Rather, we believe
         this situation is sufficiently distinct from the situation in Chester
         [see supra], since in this case, the matter of “public record”
         does not appear to have been within Appellant's access.14
                                       __________
            13
              Of course, the PCRA court can examine this matter on
            remand.
            14
               Chester involved a “public record” extant at the time of
            trial during which counsel was actively representing his
            client. Clearly, that is distinct from a situation in which
            counsel has abandoned his client and yet counsel is the
            only way the client would have to access the information.
                                    __________

Bennett, 930 A.2d at 1266 (emphasis added).

         Viewing our analysis in Davis, supra, through the lens of Bennett, the

contours of an “access” exception to the public records rule come into better

focus.     If our Supreme Court has recognized expressly that, without the

benefit of counsel, we cannot presume a petitioner has access to information

contained in his own public, criminal docket, then surely it cannot be that we

presume a pro se petitioner’s access to public information contained

elsewhere.       Thus, we hold that the presumption of access to information

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

petitioner is pro se.

      Applying the law in this case, and without the benefit of an evidentiary

record developed below, Appellant’s diligence may be sufficient.         After

receiving a letter from the Innocence Project, advising him of the contents of

Goodwine’s motion to expunge, Appellant promptly filed a PCRA petition.

Similar to the affidavit significant to our ruling in Davis, here the letter

received by Appellant triggered his claim for collateral relief.

      The timing of Goodwine’s motion is also important, as it occurred more

than ten years after Appellant’s judgment of sentence became final. The law

does not require hyper-diligence, in which would-be petitioners incessantly

scour the entirety of the public domain – that would be a Sisyphean task,

neither realistic nor reasonable. After such an extended period, it would not

be reasonable to expect Appellant to investigate public records with

sufficient regularity to ascertain quickly whether Goodwine may have

disclosed potentially exculpatory information concerning Appellant’s case. In

this regard, the contents of Goodwine’s motion are informative. According

to the motion, Goodwine was advised to forego a claim of self-defense at

trial. Instead, he chose not to testify. Goodwine’s silence at trial (and his

acquittal of the murder charges) eliminated any reasonable expectation that

he would, thereafter, publicly acknowledge his guilt. Thus, Appellant had no




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reason to seek out facts in support of a claim for collateral relief. Medina;

Davis.

       Finally, Appellant is pro se. Accordingly, we will not presume he has

access to public information.         Absent evidence demonstrating Appellant’s

access to the contents of Goodwine’s criminal docket, the public records rule

does not apply.7 Bennett; Davis.

       In its opinion, the PCRA court suggested that it was unclear when

Appellant really learned of Goodwine’s filings, suggesting it did not find

credible Appellant’s assertion that, unsolicited, the Innocence Project

approached Appellant in May 2013. See PCRA Court Opinion, 11/04/2013,

at 5; Commonwealth’s Substituted Brief at 19 n.14. The PCRA court cannot

make a credibility finding in a vacuum. Similarly flawed is the PCRA court’s

suggestion that Appellant must have known previously that Goodwine

murdered the victim, because Appellant was convicted also of conspiracy.
____________________________________________


7
  We reject the learned Dissent’s suggestion that we have adopted a “status-
based approach” to assessing due diligence. To be clear: An untimely
petitioner’s pro se status merely eliminates the presumption of his access to
public information.     The Commonwealth is free, of course, to adduce
evidence sufficient to establish such access. 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 after-discovered facts exception to the PCRA
timeliness requirement (just as the general public records rule works where
the petitioner is represented by counsel).

Further, we make no assumptions regarding Appellant’s access to
Goodwine’s criminal docket. We merely reject the PCRA court’s presumption
of access and, more generally, establish a framework within which
Appellant’s diligence may be assessed properly.



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See PCRA Court Opinion at 4-5. The court’s reasoning is not persuasive in

light   of   Appellant’s   claim    of   innocence   regarding   both   murder   and

conspiracy.     Without a factual record developed by the PCRA court, it is

impossible to conclude whether Appellant previously knew such facts. Thus,

these findings were premature. Nevertheless, the PCRA court may consider

these issues further following an evidentiary hearing. See, e.g., Bennett,

930 A.2d at 1275 n.13 (noting that the PCRA court is free to examine

questions that may arise in the context of a due diligence inquiry).8

        For the above reasons, we conclude that the PCRA court erred in

rejecting Appellant’s untimely petition pursuant to the public records rule.

Moreover, based on the record before us, the Goodwine motion raises

genuine issues of material fact that warrant development. See Springer,

961 A.2d at 1264. Accordingly, the order of the PCRA court is vacated, and

this matter is remanded for an evidentiary hearing.

        Order vacated. Case remanded. Jurisdiction relinquished.

        Judges Ford Elliott, PJE, Panella, J., Donohue, J., Mundy, J. and Ott, J.

join this Opinion.

        Judge Olson files a dissenting opinion in which Gantman, P.J. and

Shogan, J. join.
____________________________________________


8
  Generally, we observe that the PCRA court’s timeliness analysis of
Appellant’s after-discovered facts exception is erroneous to the extent the
court also conducted a merits analysis. See PCRA Court Opinion at 3-5;
Bennett, 930 A.2d at 1270-72.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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