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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 KIM MASON                                  :
                                            :
                    Appellant               :   No. 612 EDA 2019

            Appeal from the PCRA Order Entered March 1, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0607982-1979


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED JULY 21, 2020

      Kim Mason (“Mason”) appeals from the order entered on March 1, 2019,

which dismissed as untimely his second petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      A jury convicted Mason in June 1980 “on three counts of first-degree

murder, two counts of arson endangering property, arson endangering

persons, risking catastrophe, causing catastrophe, and criminal conspiracy.”

PCRA Ct. Op., filed 4/29/19, at 4. The crimes stemmed from Mason and his

co-defendants firebombing a rival gang member’s residence in 1977, killing

one adult and two children. The trial court sentenced Mason to three

consecutive life sentences on the charges of first-degree murder, and to an

aggregate sentence of 25 to 50 years’ incarceration on the remaining charges,

to run consecutive to his life sentences.
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       Mason appealed and this Court affirmed his judgment of sentence on

November 5, 1986. Commonwealth v. Mason, 518 A.2d 282, 292

(Pa.Super. 1986). In the same opinion, this Court vacated the judgments of

sentence for two of Mason’s co-defendants, Darryl Lamar and Mack Smith,

and remanded their cases for new trials. Id. Mason did not seek further review

in the Pennsylvania Supreme Court.

       Mason filed his first PCRA petition on March 4, 1993, in which he alleged

ineffectiveness of trial counsel. The PCRA court dismissed the petition and this

Court affirmed. The Pennsylvania Supreme Court denied allowance of appeal

in September 1998.

       On December 12, 2014, Mason filed the instant PCRA petition. Six days

later, Mason filed a pro se amended PCRA petition. The PCRA court appointed

counsel and he filed a Turner/Finley1 letter and a motion to withdraw as

counsel. The PCRA court sent Mason a Pa.R.Crim.P. 907 notice of intent to

dismiss his petition and Mason filed a response. PCRA counsel filed an

amended PCRA petition alleging that newly-discovered facts excused Mason

from the PCRA’s time bar. The court sent Mason a second Rule 907 notice of

intent to dismiss, and ultimately dismissed his petition as untimely. This timely

appeal followed.

       Mason raises one issue for our review: “Did the PCRA court err in

dismissing [Mason’s] PCRA [p]etition without a hearing because [Mason]
____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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presented newly-discovered evidence which exonerates [him]?” Mason’s Br.

at 4.

        “Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error.” Commonwealth v. Beatty,

207 A.3d 957, 960-61 (Pa.Super. 2019) (citation omitted). “We afford the

court’s factual findings deference unless there is no support for them in the

certified record.” Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa.Super.

2019) (citation omitted).

        It is well-established that “[u]nder the PCRA, any petition for relief,

including second and subsequent petitions, must be filed within one year of

the date on which the judgment of sentence becomes final.” Id. (citation

omitted). For purposes of the PCRA, “a judgment becomes 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). The

PCRA’s time limit is mandatory and jurisdictional in nature, and the court may

not ignore it in order to reach the merits of the petition. Greco, 203 A.3d at

1124 (citation omitted). Courts may consider a PCRA petition filed more than

one year after a judgment of sentence becomes final only if the petitioner

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

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          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). A petitioner must raise the claim within 60

days that the claim could have been raised. Id. at § 9545(b)(2).2

       Instantly, it is undisputed that Mason’s PCRA petition is patently

untimely. Therefore, Mason was required to plead and prove at least one of

the time bar exceptions. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Mason attempts to assert the newly-discovered fact exception, pursuant

to section 9545(b)(1)(ii). Mason contends that in November 2014, he learned

from a fellow prisoner that his co-defendant Darryl Lamar was acquitted of

murder at his second trial, which “stemmed from [three] eyewitnesses[’] . . .

refusal to testify at the second trial of Darryl Lamar.” Mason’s Br. at 14. Mason

argues that he was “never informed of the recantation and refusal to testify

at the second trial of Darryl Lamar by [these three witnesses] and “[w]ithout

these individuals’ testimony, there was scant testimony against [Mason].” Id.


____________________________________________


2 Section 9545(b)(2) was amended to reflect that a petitioner has one year
rather than the prior deadline of 60 days to raise their claim. This amendment
became effective on December 24, 2018 but only applies to claims arising on
December 24, 2017 or after. Thus, the amendment does not apply here.

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at 16. He claims that he did not know these “facts” before 2014 and that could

not have known because “he does not have access to trial transcripts from

other individuals’ trials.” Id. Mason concludes that the “PCRA court erred in

dismissing [his] PCRA [p]etition without a hearing because it was not possible

to determine diligence and the credibility of the newly-discovered evidence

without an evidentiary hearing.” Id. at 9.

        Mason further argues that a Brady3 violation occurred when the

Commonwealth allegedly failed to inform him that the Commonwealth’s

cooperating witnesses’ agreement “fell through.” Mason’s Br. at 17. Mason

maintains that “[w]ithout these cooperators’ testimony, the outcome of the

trial would have been different in that there was scant, if any, evidence against

[him].” Id. According to Mason, “[t]he failure to convey this information fully

to [him] prior to and subsequent to trial is also indicative of government

interference on the part of the Office of the District Attorney of Philadelphia to

continue to deprive [him] of Due Process and to allow [him] access to

exculpatory information to which he is entitled.” Id.

        In order to succeed in raising the newly-discovered fact exception, a

petitioner must establish that: (1) “the facts upon which the claim is

predicated were unknown,” and (2) the facts “could not have been ascertained

by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he due

diligence inquiry is fact-sensitive and dependent upon the circumstances

____________________________________________


3   Brady v. Maryland, 373 U.S. 83 (1963).

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presented.” Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa.Super.

2015) (en banc) (footnote omitted). “Due diligence demands that the

petitioner   take   reasonable   steps   to   protect   his   own   interests.”

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

omitted). “A petitioner must explain why he could not have learned the new

fact(s) earlier with the exercise of due diligence.” Id. (citations omitted).

Further, “[t]he focus of the exception is on the newly discovered facts, not on

a newly discovered or newly willing source for previously known facts.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (internal

quotation marks, citation, brackets and emphasis omitted).

      Here, this Court affirmed Mason’s judgment of sentence and vacated

Lamar’s judgment of sentence in 1986. Mason, 518 A.2d at 292. Therefore,

as early as 1986, Mason knew that Lamar was going to get a new trial and in

1988 Lamar was re-tried and found not guilty. Mason admits that Lamar’s not-

guilty verdict is a matter of public record. Mason’s Br. at 14. Mason fails to

explain why he was unable to determine the events of Lamar’s re-trial for the

next 26 years. His petition is devoid of any facts that he exercised due

diligence in discovering this information prior to November 2014.

      Furthermore, the witnesses’ recantations are not “facts” for purposes of

the new facts exception. Rather, Mason knew all along what he believed the

relevant facts to be, and these witnesses’ change in testimony at most

amounts to a new source of evidence of “facts” he already would have known.

Accordingly, Mason has failed to demonstrate that “the facts upon which the

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

ascertained by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

      Mason’s Brady claim is also without merit. In order to prove a Brady

violation, “a defendant is required to demonstrate: (1) evidence was

suppressed by the Commonwealth, either willfully or inadvertently; (2) the

evidence was favorable to the defendant; and (3) the evidence was material,

in that its omission resulted in prejudice to the defendant.” Commonwealth

v. Dennis, 17 A.3d 297, 308 (Pa. 2011) (citations omitted). Prejudice occurs

in the Brady context if “the evidence suppressed [is] material to guilt or

punishment.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008)

(citations omitted). Further,

         [t]he burden rests with the appellant to prove, by reference
         to the record, that evidence was withheld or suppressed by
         the prosecution. The evidence at issue must have been
         material evidence that deprived the defendant of a fair trial.
         Favorable evidence is material, and constitutional error
         results from its suppression by the government, if there is
         a reasonable probability that, had the evidence been
         disclosed to the defense, the result of the proceeding would
         have been different.

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (quotation marks

and citations omitted).

      Mason claims that the “Brady issue is also newly-discovered in that [he]

did not know that the Commonwealth’s cooperators’ agreements fell through

and the full bases of that cooperation as well as the full criminal culpability of

the cooperators.” Mason’s Br. at 17. Again, Mason has not explained how he


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exercised any diligence in discovering this information. See Roney, 79 A.3d

at 608 (stating “Brady is not violated when the appellant knew or, with

reasonable diligence, could have uncovered the evidence in question, or when

the evidence was available to the defense from other sources”). Moreover,

Mason has failed to show that the Commonwealth withheld this information or

that the information was material evidence that deprived him of a fair trial.

Mason’s bald assertion that the outcome of his trial would be different without

these witnesses’ testimony is mere speculation and does not constitute a

Brady violation. Finally, to the extent Mason is attempting to assert the

governmental-interference exception to the PCRA time bar, the claim fails for

these same reasons. We thus affirm the dismissal of his PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/20




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