J-S59009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARK VINCENT,

                            Appellant                 No. 3496 EDA 2016


             Appeal from the PCRA Order Entered October 27, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0710181-1995


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 25, 2017

        Appellant, Mark Vincent, appeals pro se from the post-conviction

court’s October 27, 2016 order dismissing, as untimely, his petition filed

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

For the reasons herein, we reverse and remand.

        The PCRA court summarized the procedural history underlying this

appeal as follows:
        [Appellant] was arrested and subsequently charged with
        homicide and related offenses stemming from the killing of
        James Moore on May 12, 1995[,] in the city of Philadelphia. On
        October 16, 1996, following a jury trial presided over by the
        Honorable James Lineberger, [Appellant] was convicted of first-
        degree murder, robbery, and weapons offenses. On June 30,
        1997, the trial court imposed a sentence of life imprisonment for
        the murder conviction and a lesser consecutive term of
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S59009-17


      incarceration for the robbery conviction.   Following a direct
      appeal, [Appellant’s] judgment of sentence was affirmed by the
      Superior Court on October 6, 1998, and the Pennsylvania
      Supreme Court denied allocatur on October [7], 1999.2
         2 Commonwealth v. Vincent, 731 A.2d 200 (Pa. Super.
         1998) (unpublished memorandum), appeal denied, 745
         A.2d 1222 (Pa. 1999).

      On January 9, 2002, [Appellant] filed his first pro se PCRA
      petition.  Counsel was appointed and subsequently filed a
      Turner/Finley no merit letter.3 The PCRA court denied the
      petition on April 14, 2003. The Superior Court affirmed the
      PCRA court’s order denying relief on September 3, 2004.4
         3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
         and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
         1988) (en banc).
         4Commonwealth v. Vincent, 863 A.2d 1233 (Pa. Super.
         2004) (unpublished memorandum).

      On February 12, 2016, [Appellant] filed the instant pro se PCRA
      petition, his second. Pursuant to Pennsylvania Rule of Criminal
      Procedure 907, [Appellant] was served notice of the PCRA
      court’s intention to dismiss his petition on July 19, 2016.
      [Appellant] submitted a response to the Rule 907 notice on
      August 9, 2016. On October 27, 2016, the PCRA court dismissed
      his petition as untimely. On November 4, 2016, the instant
      notice of appeal was timely filed to the Superior Court.

PCRA Court Opinion (PCO), 2/7/2017, at 1-2 (single footnote omitted).

      On appeal, Appellant raises a single issue for our review:
      Did the PCRA court err in dismissing the newly discovered
      evidence based upon a purported lack of diligence?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Our standard of review regarding an order denying post-conviction

relief is whether the findings of the court are “supported by the record and

free of legal error.”   Commonwealth v. Albrecht, 994 A.2d 1091, 1093



                                     -2-
J-S59009-17



(Pa. 2010) (citations omitted).   We begin by addressing the timeliness of

Appellant’s petition because “[t]he PCRA’s time restrictions are jurisdictional

in nature. … Without jurisdiction, we simply do not have the legal authority

to address the substantive claims.” Id. (citations omitted). With respect to

timeliness, the PCRA provides, in pertinent part, the following:
      (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.

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S. § 9545(b)(1)-(2).

      Here, as mentioned by the PCRA court above, this Court affirmed

Appellant’s judgment of sentence on October 6, 1998, and the Pennsylvania

Supreme Court denied allocatur on October 7, 1999. Appellant did not file a

petition for a writ of certiorari with the United States Supreme Court. Thus,

                                     -3-
J-S59009-17



Appellant’s judgment of sentence became final on January 5, 2000, and he

had one year from that date to file a timely PCRA petition. See 42 Pa.C.S. §

9545(b)(3) (stating that a 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(1) (stating that a petition for a writ of certiorari

is timely when it is filed within 90 days after entry of the judgment).

Therefore, his present petition, filed on February 12, 2016, is patently

untimely, and Appellant must satisfy one of the exceptions to the timeliness

requirement set forth in section 9545(b)(1)(i)-(iii), supra.

      Appellant argues that he meets the exception for newly-discovered

facts under section 9545(b)(1)(ii).      “When considering a claim seeking to

invoke section 9545(b)(1)(ii), the petitioner must establish only that (1) the

facts upon which the claim was predicated were unknown and (2) they could

not   have    been   ascertained    by    the   exercise   of   due   diligence.”

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation omitted).

Further, our Supreme Court has “unequivocally explained that the exception

set forth in subsection (b)(1)(ii) does not require any merits analysis of the

underlying claim. Rather, the exception only requires a petitioner to prove

that the facts were unknown to him and that he exercised due diligence in

discovering those facts.”      Id. (citation and internal quotation marks

omitted). “Due diligence does not require perfect vigilance and punctilious

care, but merely a showing the party has put forth reasonable effort to




                                      -4-
J-S59009-17



obtain the information upon which a claim is based.”         Id. at 230 (citation

and internal quotation marks omitted).

      In his PCRA petition, Appellant claimed that he satisfied section

9545(b)(1)(ii), based on the affidavit of a previously unknown witness

named William Adams. See Appellant’s PCRA Petition (hereinafter Petition),

2/12/2016, at 2-3.         Appellant summarized the content of Mr. Adams’s

affidavit as follows:
      According to Mr. Adams, he was present when the events
      leading to [Appellant’s] arrest occurred and witnessed an
      individual named Kenneth Billie a.k.a. Kenneth Hall shoot the
      victim. Mr. Adams state[s] that he was on his way home on the
      night in question and noticed a crowd in the vicinity of south
      60th Street. Mr. Adams reveals in his affidavit that he saw
      [Appellant] arguing with the decedent who[] was a childhood
      friend of Kenneth Billie. After witnessing [Appellant] slap the
      victim, [M]r. Adams saw Kenneth Billie a.k.a. Kenneth Hall pull a
      handgun from his jacket and shoot the victim, although he was
      shooting at [Appellant].

Id.

      The    PCRA       court   subsequently    dismissed   Appellant’s   petition,

determining that he did not fulfill the requirements of section 9545(b)(1)(ii).

Specifically, the PCRA court found that Appellant “failed … to demonstrate

that the ‘fact’ that someone else murdered the decedent could not, with the

exercise of due diligence, have been ascertained earlier.”         PCO at 4.     It

stated   that     “[a]t    trial,   the   Commonwealth      presented     multiple

eye[]witnesses.         Rather than detailing any efforts to contact them,

[Appellant] speculated that neither [of the eyewitnesses] would have been

amenable to cooperation, because they were ‘friends to the prosecution.’”

                                          -5-
J-S59009-17



Id. (citation omitted). The PCRA court also observed that “[i]n addition to

known witnesses, [Appellant] had reason to suspect the existence of other

potentially helpful witnesses. [Mr.] Adams expressed detailed knowledge of

the incident, articulating nicknames of, and relationships among, those

present” and “described the gathering of individuals as a crowd.”           Id.

Nonetheless, it noted that Appellant “failed to articulate any efforts to locate

or identify additional witnesses, such as [Mr.] Adams.”       Id.   Although it

acknowledged that Appellant claimed he “was unable to conduct an

investigation because he was incarcerated[,]” it found his “explanation for

failing to act … insufficient absent a demonstration that his access to

communication channels was restricted while in custody.” Id. at 4-5.

      Instantly, Appellant argues that the PCRA court improperly required

“maximum diligence” instead of “due diligence” in its application of section

9545(b)(1)(ii).   See Appellant’s Brief at 10.   He claims that he could not

identify additional witnesses because he “does not know any of those

individuals and knew nothing of them prior to receiving the affidavit.”     Id.

Moreover, he asserts that it was unreasonable for the PCRA court to expect

him to contact the Commonwealth’s eyewitnesses because “attempting to

contact [them] could have exposed [Appellant] to criminal liability for

witness tampering.” Id. Finally, in response to the PCRA court’s evaluation

that he did not adequately demonstrate efforts to identify potential

witnesses while in prison, Appellant asserts that “nothing would have

revealed Mr. Adams except for Mr. Adams himself.” Id. at 11.

                                     -6-
J-S59009-17



       After careful review, we believe that Appellant has satisfied section

9545(b)(1)(ii). First, Appellant has established that the facts upon which his

claim was predicated — Mr. Adams’s witnessing Mr. Billie shoot the decedent

— were unknown. See Cox, 146 A.3d at 227 (“When considering a claim

seeking to invoke section 9545(b)(1)(ii), the petitioner must establish only

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

(2) they could not have been ascertained by the exercise of due diligence.”).

Appellant alleges that “[p]rior to, during or after trial, [he] had no

knowledge of Mr. [A]dams nor of the information he possessed. [T]here was

nothing presented during trial that would have remotely alerted the defense

to Mr. Adams or Kenneth Billie a.k.a. Kenneth Hall.” Petition at 3. Further,

the Commonwealth does not argue that Appellant had knowledge of any un-

named eyewitnesses at the scene of the shooting, let alone Mr. Adams

specifically, nor does our cursory review of the record indicate that Appellant

did.

       Second, Appellant has shown that the information in Mr. Adams’s

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

See Cox, 146 A.3d at 227. As Appellant did not know that there were any

other eyewitnesses to the shooting, no reasonable effort would have led to

his obtaining the information set forth in Mr. Adams’s affidavit. See id. at

230.   Accordingly, the PCRA court erred in determining that Appellant did

not meet section 9545(b)(1)(ii) and deeming his petition untimely on this




                                     -7-
J-S59009-17



basis.1 Therefore, a hearing is warranted on the merits of Appellant’s after-

discovered evidence claim.2

       Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




____________________________________________


1 We further note that Appellant filed his petition within 60 days of the date
the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2) (“Any
petition invoking an exception … shall be filed within 60 days of the date the
claim could have been presented.”); Affidavit of William Adams, 2/3/2016,
at 2 (“On January 4, 2016, … I approached [Appellant] and relayed the
above information to him.”).

2 See Cox, 146 A.3d at 228 (explaining that to establish an after-discovered
evidence claim, “a petitioner must prove that (1) the evidence has been
discovered after trial and it could not 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”) (citation omitted).



                                           -8-
