J-S84036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MUSTAFA C. THOMAS,

                         Appellant                  No. 2436 EDA 2014


               Appeal from the PCRA Order of August 14, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0916841-1993


BEFORE: OLSON, SOLANO AND FITZGERALD,* JJ.

CONCURRING MEMORANDUM BY OLSON, J.:                   FILED JULY 25, 2017

      I concur in the result of remanding this case for an evidentiary

hearing.   I write separately, however, as I believe that it is important to

clarify the parameters of the hearing that will be held on remand.

      As noted by the learned Majority, Appellant, Mustafa C. Thomas,

appeals from the August 14, 2014 order dismissing, as untimely, his second

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. While his appeal was pending, Appellant filed with this Court

a “Petition to Remand to Trial Court for Evidentiary Hearing Relating to

Newly Discovered Evidence” (“petition to remand”). Attached to the petition

to remand is a letter to Appellant’s counsel dated May 18, 2017 from

Anthony Carissimi, Assistant District Attorney, PCRA Unit.    Mr. Carissimi’s

letter references additional documents that were transmitted to Appellant’s

*Retired Justice specially assigned to the Superior Court.
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counsel regarding the recent decision of the Philadelphia District Attorney’s

Office Conviction Review Unit (“CRU”) that the conviction of Appellant’s co-

defendant and brother, Shaurn Thomas, “should be vacated.”            Petition to

Remand, Exhibit X-A-1, 5/24/17. One of the documents transmitted was “a

memorandum from an [a]ssistant [d]istrict [a]ttorney in the CRU who met

with William Stallworth, a witness at [Appellant’s] trial.” Id. The letter goes

on to state

      If you choose to seek a remand from the Superior Court to
      litigate claims that may arise from the attached documents, the
      Commonwealth will not oppose that request. Please note that
      the CRU has not investigated [Appellant’s] case, and thus has
      not made any determination about his conviction.

Id. Appellant’s petition to remand provides in relevant part:

      On 5-19-17 [Appellant’s] counsel received information from the
      [Philadelphia District Attorney’s (“DA”] office that William
      Stallworth recanted his trial testimony and along with other
      evidence the DA’s Office received it would not oppose remand of
      the matter for an evidentiary hearing on the basis of newly
      discovered evidence. . . .

      In the interest of justice this matter should be remanded to the
      trial court for an evidentiary hearing do [sic] to newly
      discovered evidence.

Petition   to   Remand   (emphasis    added).     Although      Mr.   Carissimi’s

correspondence indicates that the Commonwealth will not oppose Appellant’s

request for a remand, it is unclear what issues the Commonwealth agrees

should be examined upon remand. The mere fact that the Commonwealth

agrees to a remand does not give Appellant the right to a hearing aimed at

exploring his eligibility for substantive relief (presumably based on newly

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discovered evidence) without first establishing an exception to the PCRA’s

timeliness requirement.    Appellant’s petition to remand indicates that he

seeks a remand for a hearing on the basis of newly discovered evidence.

In the absence of a definitive determination that Appellant has overcome the

PCRA’s one-year time-bar, however, it is important to make clear that the

remand is solely for the purpose of deciding whether the newly discovered

fact exception has been met.     Unless and until the PCRA court determines

that the newly discovered fact exception to the timeliness requirement is

applicable, the PCRA court lacks jurisdiction to consider the merits of

Appellant’s after discovered evidence claim.      Thus, I believe that it is

necessary that we clarify the parameters of our remand order.

      It is well established that “any PCRA petition, including a second or

subsequent petition, [] be filed within one year of the date that the

petitioner’s judgment of sentence becomes final, unless [the] petitioner

pleads [and] proves that one of the [three] exceptions to the timeliness

requirement . . . is applicable.” Commonwealth v. McKeever, 947 A.2d

782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).         Further, since the

time-bar implicates the subject matter jurisdiction of our courts, we are

required to determine first the timeliness of a petition before we consider the

underlying claims.   Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa.

1999). Our Supreme Court explained:

      The PCRA timeliness requirements are jurisdictional in nature
      and, accordingly, a PCRA court is precluded from considering

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       untimely PCRA petitions.         See, e.g., Commonwealth v.
       Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given the
       fact that the PCRA’s timeliness requirements are mandatory and
       jurisdictional in nature, no court may properly disregard or alter
       them in order to reach the merits of the claims raised in a PCRA
       petition that is filed in an untimely manner”); Commonwealth
       v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where a
       petitioner fails to satisfy the PCRA time requirements, this Court
       has no jurisdiction to entertain the petition). [The Pennsylvania
       Supreme Court has] also held that even where the PCRA court
       does not address the applicability of the PCRA timing mandate,
       th[e Court would] consider the issue sua sponte, as it is a
       threshold question implicating our subject matter jurisdiction and
       ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

       In this case, Appellant’s judgment of sentence became final on January

31, 1998.1 Thus, Appellant’s second PCRA petition filed on September 23,

2011 is patently untimely and the burden falls on him to allege and prove

that one of the PCRA timeliness exceptions applies.        Whether Appellant

meets this burden is a threshold inquiry that the PCRA court must resolve on

remand prior to considering the merits of the petition. Commonwealth v.
____________________________________________


1
  Appellant was sentenced on January 31, 1995. He appealed and this Court
affirmed in part and remanded for an evidentiary hearing regarding trial
counsel’s ineffectiveness. Commonwealth v. Thomas, 685 A.2d 214 (Pa.
Super. 1996) (unpublished memorandum). On remand, the trial court found
that trial counsel was not ineffective and we affirmed that ruling on
December 31, 1997. Commonwealth v. Thomas, 706 A.2d 1259 (Pa.
Super. 1997) (unpublished memorandum). Appellant did not seek further
review from the Pennsylvania Supreme Court, therefore, his judgment of
sentence became final 30 days after this Court’s December 31, 1997
affirmance. 42 Pa.C.S.A. § 9545(b)(3) (a judgment is deemed final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking review.”).



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Edmiston, 65 A.3d 339, 346 (Pa. 2013);         See also Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 134 S.Ct. 2695 (2014)

(“The PCRA timeliness requirement . . . is mandatory and jurisdictional in

nature. . . . The court cannot ignore a petition’s timeliness and reach the

merits of the petition.”).

      There are three exceptions to the timeliness requirement of the PCRA.

It is not clear from Appellant’s brief or petition to remand which exception

Appellant seeks to establish, however, it appears that Appellant relies on the

after discovered fact exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii).

This section provides that “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”. Id.

      The timeliness exception set forth in Section 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.      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.
      Additionally, the focus of this exception “is on the newly
      discovered facts, not on a newly discovered or newly willing
      source for previously known facts.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015), (internal

quotations and citations omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).

Our Supreme Court recently described this section as providing a gate-

keeping function. “The function of a section 9545(b)(1)(ii) analysis is that of


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a gatekeeper.       Its inquiry, therefore, is limited to considering only the

existence of a previously unknown fact that would allow a petitioner to avoid

the strict one year time-bar.” Commonwealth v. Cox, 146 A.3d 221, 229,

n.11 (Pa. 2016). Thus, the legal inquiry for jurisdictional purposes is limited

to examining whether the facts were unknown, and, if so, whether the

subsequent uncovering of the facts were done with due diligence, which

“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.”

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

banc), affirmed, 2017 WL 1149203 (Pa. 2017).                 Provided a petitioner has

satisfied these two prongs, only then is a merits analysis proper. Thus, on

remand, it is only after the PCRA court is satisfied following a hearing that

Appellant 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, that the

court may exercise jurisdiction to consider the merits of the PCRA petition. 2

____________________________________________


2
   If the PCRA court has jurisdiction, the relevant inquiry then becomes
whether the claim is cognizable under the PCRA. Section 9543 of the PCRA
sets forth seven categories of claims that justify relief. Of relevance here is
the “after discovered evidence” provision which provides that a claim
alleging “the unavailability at the time of trial of exculpatory evidence that
has subsequently become available and would have changed the outcome of
the trial if it had been introduced” is cognizable under the PCRA. 42
Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, the petitioner must
prove that “(1) the evidence has been discovered after trial and it could not
(Footnote Continued Next Page)


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      Appellant argues that there are two newly discovered facts that

support his claim for relief.          First, he argues that a Philadelphia Police

Department Criminalistics Laboratory report dated December 16, 1994 was

not discovered until after trial. Appellant’s Brief at 2, 8. I do not believe

that this is a newly discovered fact that demonstrates a timeliness

exception.     Moreover, I do not believe that an evidentiary hearing is

necessary to make this determination.             Thus, I would direct the PCRA court

that this issue is not to be considered upon remand.

      During Appellant’s trial, the Commonwealth offered for identification a

series of 14 photographs of a blue Chevrolet Caprice. N.T., 12/12/94, at 41-

76. Counsel for the defense objected at which time the prosecutor stated

that John and William Stallworth would testify that the photographs depicted

                       _______________________
(Footnote Continued)

have been obtained at or prior to trial through reasonable diligence; (2) the
evidence is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.”
Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004). Appellant’s
counsel appears to conflate the newly discovered fact exception to the
timeliness requirement of the PCRA, and the after discovered evidence
provision that permits relief under the PCRA. In both the brief and petition
for remand, counsel argues that Appellant is entitled to collateral relief
based upon newly discovered evidence which “showed [Appellant] was
innocent of the offenses of which he was convicted” and “[Appellant] was not
present and not involved in the murder/robbery.” Appellant’s Brief at 11.
See also Petition to Remand (“In the interest of justice this matter should
be remanded to the trial court for an evidentiary hearing do [sic] to newly
discovered evidence.”) (emphasis added). However, unless the PCRA court
determines that is has jurisdiction over this untimely second PCRA petition,
the merits of the petition, including the argument that the after discovered
evidence establishes that Appellant is innocent, cannot be considered.



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the car used by Appellant during the robbery. Id. at 42. Later during trial,

however, both Stallworths testified that a different car was used in the

robbery. The prosecutor never asked John or William Stallworth to identify

the blue Caprice depicted in the photographs and the trial court prevented

these exhibits from going to the jury. N.T., 12/15/94, at 116-117.

         It is alleged that counsel for Appellant’s co-defendant, Shaurn,

discovered the Criminalistics Report in 2011.              The report was apparently

authored during the trial and it demonstrated that the Caprice was not used

in the robbery and murder. Appellant asserts that this report is exculpatory

and was wrongly withheld from the defense in violation of Brady v.

Maryland, 373 U.S. 83 (1963).

         As previously noted, in order to invoke the newly discovered fact

exception to the PCRA timeliness requirement, Appellant must establish that

(1) the facts upon which the claim was predicated were unknown, and (2)

these facts could not have been ascertained by the exercise of due diligence.

I   do    not   believe     that   the    Criminalistics    Report   satisfies   section

9545(b)(1)(ii).      The      record     refutes   Appellant’s   assertion   that    the

Commonwealth failed to reveal that it performed testing on the Caprice.

Officer James Caldwell testified that evidence collected from the Caprice was

“submitted to the Criminalistics Laboratory” on February 8, 1991.                   N.T.,

12/12/94, at 70.          More importantly, the Criminalistics Report does not

constitute a previously unknown fact as the Commonwealth informed


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Appellant’s counsel during trial that the blue Caprice was not involved in the

robbery and murder.          Thus, the photographs were successfully excluded

from evidence.      N.T., 12/15/94, at 116-117.            The Commonwealth did not

attempt to use any evidence relating to the blue Chevrolet Caprice against

Appellant. The Criminalistics Report merely confirmed the previously known

fact that the Caprice was not involved in the crime.              Commonwealth v.

Edmiston, 65 A.3d 339, 352 (Pa. 2013) (a petitioner must allege and prove

previously unknown facts, not merely a “newly discovered or newly willing

source for previously known facts.”) Thus, on remand, I do not believe that

evidence     should    be    considered        regarding   the   Criminalistics   Report

discovered in 2011.3


____________________________________________


3
  To the extent Appellant would argue that the Criminalistics Report serves
as a basis for the governmental interference exception set forth in Section
9545(b)(1)(i), I disagree. “Although a Brady violation may fall within the
governmental interference exception, the petitioner must plead and prove
that the failure to previously raise these claims was the result of interference
by government officials, and that the information could not have been
obtained earlier with the exercise of due diligence.” Commonwealth v.
Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citation omitted). In other
words, Appellant must plead and prove that the government interfered with
his ability to raise the Brady violation. A Brady violation exists “where the
suppressed evidence is material to guilt or punishment, i.e., where there is a
reasonable probability that, had the evidence been disclosed, the result of
the proceeding would have been different.” Commonwealth v. Couser,
154 A.3d 287, 301 (Pa. 2017) (citation omitted). Here, the trial court
excluded all evidence relating to the blue Chevrolet Caprice. Thus, the
Criminalistics Report was immaterial to Appellant’s guilt and, therefore,
cannot support a claim of a Brady violation.




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        The second newly discovered fact upon which Appellant relies is the

alleged recantation by William Stallworth. Specifically, in his PCRA petition,

Appellant relies upon a declaration of Shaina A. Tyler, an investigator

employed by the Pennsylvania Innocence Project.        In this declaration, Ms.

Tyler states that she visited William Stallworth on September 29, 2011 at

which time “William Stallworth told [Ms. Tyler] that his testimony at the trial

of Shaurn and Mustafa Thomas was a lie, and that he made up the entire

story.” Declaration of Shaina A. Tyler, 22/23/11, at 1-2. On April 11, 2017,

while this case was on appeal before this Court, William Stallworth

apparently was interviewed again by a member of the Philadelphia District

Attorney’s CRU.4 During this second interview, William stated “[h]e was not

present on 11/13/1990 for the robbery and murder of Domingo Martinez”
____________________________________________


4
   Appellant’s petition to remand attaches a copy of Mr. Carissimi’s letter of
May 18, 2017 that references the appeal of Appellant’s co-defendant,
Shaurn Thomas. Mr. Carissimi also references the CRU’s determination that
Shaurn’s conviction should be vacated based upon documents that were
allegedly transmitted to Appellant’s counsel with Mr. Carissimi’s letter.
Counsel for Appellant did not include the attachments in the petition to
remand. These attachments are important to our analysis regarding the
petition to remand as the Commonwealth’s decision not to oppose a remand
of Appellant’s case was based, in part, on these documents. Fortunately,
some of the documents were made part of the record in Shaurn’s appeal to
this court at docket no. 1943 EDA 2014. Specifically, the “memorandum
from an [a]ssistant [d]istrict [a]ttorney in the CRU who met with William
Stallworth” which is referenced in Mr. Carissimi’s letter to Appellant’s counsel
and which was allegedly attached to Mr. Carissimi’s letter as “App. C” was
attached to Appellant, Shaurn Thomas’ Second Petition to Remand to the
Court of Common Pleas for a Hearing Concerning After-Discovered Evidence,
filed on May 3, 2017 at docket no. 1943 EDA 2014.




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and “[h]e does not believe, but has no first[-]hand knowledge, that Shaurn

Thomas was there either.” Shaurn Thomas’ Second Petition to Remand to

the Court of Common Pleas for a Hearing Concerning After-Discovered

Evidence, 5/3/17, 4/11/17 Memo to File. William allegedly went on to say

“[h]e believes that the murder was committed by John Stallworth and

[Appellant] possibly at the behest of the decedent’s family.” Id. Before the

PCRA court may consider whether this is after discovered evidence that

entitles Appellant to collateral relief, the court must first determine whether

Appellant has proven that he did not know of William’s statements and could

not have learned about the statements earlier by the exercise of due

diligence.5 Only if Appellant meets this burden may the PCRA court consider

the merits of Appellant’s after discovered evidence claim.6 Thus, with this

clarification, I concur in the result to remand for an evidentiary hearing.

____________________________________________


5
   I question whether William Stallworth’s statements          are, in fact, a
recantation of his entire trial testimony. He apparently      has recanted his
testimony that he was present at the robbery and murder;      however, he does
not recant his testimony that Appellant was involved in the   crime.
6
  In dismissing Appellant’s PCRA petition, the PCRA court concluded that the
declaration of Ms. Tyler was inadmissible hearsay and could not serve as a
basis for the newly discovered fact timeliness exception.        PCRA Court
Opinion, 5/21/15, at 8-9. The court went on to consider the merits of the
claim that Ms. Tyler’s declaration was after discovered evidence that entitled
Appellant to collateral relief. Id. at 9-10. Part of the PCRA court’s rationale
for its conclusion that Appellant was not entitled to relief was that “PCRA
counsel did not produce an affidavit from William Stallworth indicating he
was ready, willing and able to testify on the Appellant’s behalf if an
evidentiary hearing were held. Instead, PCRA counsel submitted an affidavit
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

[sic] from an Innocence Project investigator, Shaina Tyler, recounting what
William Stallworth told her.” Id. at 10. Since the PCRA court issued its
opinion, the Commonwealth produced a memo from an assistant district
attorney from the CRU outlining the statements made by William Stallworth
during the interview on April 11, 2017. This memo does not indicate
whether William Stallworth is “ready, willing and able” to testify at an
evidentiary hearing. However, Appellant need not produce such evidence at
this time. Pa.R.Crim.P. 902(A)(15) sets forth the requirements for a PCRA
evidentiary hearing. It provides that “[t]he request for an evidentiary
hearing shall include certification as to each intended witness, stating the
witness’s name, address, and date of birth, and the substance of the
witness’s testimony.” Nothing in the rule requires an affidavit from the
witness. See Commonwealth v. Pander, 100 A.3d 626, 640 (Pa. Super.
2014) (“a sworn affidavit is not necessary to secure a hearing” under the
PCRA). Thus, Appellant should be given the opportunity to obtain William
Stallworth’s testimony at an evidentiary hearing. It will then be up to the
PCRA court to assess his testimony in determining whether the newly
discovered fact timeliness exception applies and, if so, whether Appellant is
entitled to collateral relief based upon a claim of after discovered evidence.



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