J-S46011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 WILLIAM FRANKLIN                        :
                                         :
                   Appellant             :    No. 3263 EDA 2017

              Appeal from the PCRA Order September 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0605611-1980


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 16, 2018

      William Franklin appeals from the September 12, 2017 order dismissing

his pro se PCRA petition pursuant to Pa.R.Crim.P. 907 as untimely.        After

thorough review, we vacate the order and remand for an evidentiary hearing.

      Appellant was arrested and charged in the 1976 murder of Joseph Hollis

and attempted murder of John Pickens, and tried before a jury in 1982. This

Court summarized the trial court’s account of the facts as follows:

            The relevant crimes were committed during a meeting on
      October 22, 1976[,] which occurred between two rival syndicates
      engaged in illegal narcotics operations, the “North Philadelphia”
      and “West Philadelphia” groups. The purpose of the meeting
      allegedly was to reconcile differences between the two
      syndicates[,] which had arisen two days earlier when Hollis
      insulted Alfred Clark, the leader of the North Philadelphia
      organization, by questioning his credentials as a “real gangster”
      and slapping him in the face with a gun.
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             The meeting on October 22, 1976 was attended by
      approximately ten people. During the meeting, [A]ppellant and
      Major Tillery, a member of the North Philadelphia syndicate, drew
      weapons from underneath a pool table and shot Hollis and
      Pickens; Hollis died as a result of the shooting. Emmanuel Claitt,
      also a member of the North Philadelphia group, testified that he
      had no prior knowledge of the shooting and that he was standing
      by the door during the meeting to prevent anyone from entering
      or leaving. Based on information supplied by Claitt, [A]ppellant
      was arrested four years later. Claitt's evidence was given in return
      for leniency from the Commonwealth relating to other open cases.

Commonwealth v. Franklin, 580 A.2d 25, 27 (Pa.Super. 1990).

      At the conclusion of the jury trial, Appellant was convicted of first-degree

murder, conspiracy, possessing an instrument of crime (“PIC”), and

aggravated assault. He was sentenced on July 7, 1982, to a mandatory term

of life imprisonment without parole for the murder, and concurrent terms of

five to ten years imprisonment for aggravated assault and conspiracy, and a

concurrent term of two and one-half to five years imprisonment on the PIC

conviction.

      Appellant’s judgment of sentence was affirmed by this Court on direct

appeal, and the Supreme Court denied allowance of appeal. Commonwealth

v. Franklin, 488 A.2d 1163 (Pa.Super. 1984) (unpublished memorandum)

(app. denied June 24, 1985).      Appellant filed a timely first PCRA petition,

counsel was appointed, and an amended petition was filed.               After an

evidentiary hearing, the petition was dismissed.       This Court affirmed the

dismissal, Commonwealth v. Franklin, 580 A.2d 25 (Pa.Super. 1990), and

allowance of appeal was denied. Commonwealth v. Franklin, 593 A.2d 415

(Pa. 1991).


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      Appellant filed the instant PCRA petition, his second, more than thirty

years after his judgment of sentence became final. He alleged that his petition

was   timely   based   upon   the   timeliness   exceptions   for   governmental

interference and newly-discovered facts. The pertinent newly-discovered fact

was the recent declaration of Emanuel Claitt, the sole witness against

Appellant, “that his testimony was entirely false,” and that “it was

manufactured by the prosecution with the assistance of police detectives and

secured by threats, coercion and favors.” PCRA Petition, 7/18/16, at ¶8. In

support of the governmental interference exception, Appellant pled that he

was prevented from demonstrating his innocence at trial “because the

Commonwealth concealed its actions presenting false evidence and withheld

exculpatory evidence in violation of Brady v. Maryland[, 373 U.S. 83

(1963),] and Napue v. Illinois[, 360 U.S. 264 (1959),] and due process

principles[.]” Id. at ¶9.

      Appellant averred further that Claitt made a sworn declaration on behalf

of Appellant’s co-defendant Major Tillery on May 4, 2016, and a supplemental

sworn declaration on behalf of Appellant on June 3, 2016, recanting his trial

testimony implicating Appellant in the murder. These facts became known to

him within sixty days of the filing of the petition when Tillery’s attorney

forwarded the declaration to him. He pled further that Claitt’s recantation was

unknown to him and could not have been ascertained earlier with the exercise

of reasonable diligence. Appellant attached to his petition the declaration by

Claitt dated June 3, 2016. Appellant also filed a supplemental PCRA petition

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in which he provided witness certifications for Helen Ellis and Denise Certain,

as well as homicide unit logs and correspondence, that he alleged

corroborated Claitt’s claims that the Commonwealth gave him favorable

treatment and sexual favors in return for his perjured testimony.1

        Although Appellant invoked the newly-discovered fact exception to the

timeliness bar, and offered declarations and witness certifications in support

of the timeliness of his petition, the PCRA court issued Rule 907 notice of its

intent to dismiss the petition as untimely.2 The court stated therein that the

PCRA petition filed July 18, 2016, based on Claitt’s declaration recanting his

testimony dated May 4, 2016, was filed more than sixty days after he could
____________________________________________


1 Appellant filed a witness certification that he intended to call Helen Ellis to
testify at the evidentiary hearing. He provided her address and date of birth.
He represented that Ms. Ellis would testify that “she had sex with Emanuel
Claitt in the Roundhouse homicide interview room and that arrangements
were made by detectives who brought her up to him.” Certification of Helen
Ellis as a Witness, 10/28/16, at 1.

The witness certification for Denise Certain also contained her identifying
information, and the substance of her proffered testimony was virtually
identical. In addition, however, Appellant represented that Ms. Certain would
identify her signature on the Roundhouse login sheet for December 14, 1983.
See Certification of Denise Certain as a Witness, at 1.

2   Pennsylvania Rule of Criminal Procedure 907(1) provides in pertinent part:

        If the judge is satisfied from this review that there are no genuine
        issues concerning any material fact and that the defendant is not
        entitled to post-conviction collateral relief, and no purpose would
        be served by any further proceedings, the judge shall give notice
        to the parties of the intention to dismiss the petition and shall
        state in the notice the reasons for the dismissal . . . .

Pa.R.Crim.P. Rule 907(1).

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have first presented the claim, and hence, untimely. Furthermore, Appellant’s

failure to contact Claitt during the intervening thirty-five years, despite having

every reason to question and investigate that witness, did not meet the

requisite showing of due diligence.       The court also found that witness

certifications from Claitt and two other witnesses were legally insufficient, and

that affidavits were required to support the claim. Finally, the court stated

that Appellant had failed to demonstrate how the government had suppressed

evidence of the two witnesses, Ms. Ellis and Ms. Certain, and additionally, that

he had not filed the petition within sixty days of accessing this information.

      Appellant filed a response objecting to dismissal, in which he clarified

that he filed the petition within sixty days of receiving Claitt’s declaration. In

support of that contention, he attached an affidavit from his co-defendant’s

attorney who had mailed the declarations to him. Appellant also challenged

the court’s affidavit requirement, citing authority that witness certifications

were sufficient under the PCRA. Finally, Appellant cited Commonwealth v.

Medina, 92 A.3d 1210 (Pa.Super. 2014) (en banc), Commonwealth v.

Loner, 836 A.2d 125 (Pa.Super. 2003) (en banc), and Commonwealth v.

McCracken, 659 A.2d 541 (Pa. 1995), wherein courts had rejected the notion

that recantation could have been discovered earlier with due diligence, and

which discussed the need for an evidentiary hearing.            Nonetheless, on

September 12, 2017, the court dismissed the petition as untimely without a

hearing.

      Appellant timely appealed, and he presents three issues for our review:

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      I.     Whether the PCRA court erred where it dismiss[ed]
             Appellant’s PCRA petition without a hearing, where
             Appellant invoked an exception under 42 Pa.C.S. §
             9545(b)(1)(i); 42 Pa.C.S. § 9545(b)(1)(ii)[,] and 42 Pa.C.S.
             § 9545(b)(2)?

      II.    Whether the prosecution violated Appellant’s state and
             federal constitutional rights to due process, a fair trial, and
             his right to present a viable defense?

      III.   Whether the prosecution violated the rule pronounced in
             Brady v. Maryland, where the prosecution withheld
             material, exculpatory evidence from the Appellant?

Appellant’s brief at 4.

      On appeal from the denial of PCRA relief, our standard of review compels

us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. Commonwealth v. Lesko, 15 A.3d 345, 358

(Pa. 2011). We will review an order dismissing a PCRA petition in the light

most favorable to the prevailing party at the PCRA level. Commonwealth v.

Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012).

      Generally, a petition for post-conviction relief, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final, unless the petitioner alleges and proves that one of the three

exceptions to the time bar applies. “A judgment of sentence 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. § 9545(b)(3).”

Commonwealth v. Hernandez, 79 A.3d 649, 650 (Pa.Super. 2013). The

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merits of a PCRA petition cannot be addressed unless the PCRA court has

jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Jurisdiction does not exist if the PCRA petition is untimely filed. Id.

      Appellant conceded that his petition was facially untimely under 42

Pa.C.S. § 9545(b), but pled the applicability of the newly-discovered fact and

governmental interference exceptions set forth in § 9545(b)(1)(i) and (ii):

      (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;

42 Pa.C.S. § 9545(b)(1)(i) and (ii).

      It is the petitioner’s burden to allege and prove that one of the timeliness

exceptions applies. See Commonwealth v. Smallwood, 155 A.3d 1054,

1060 (Pa.Super. 2017). Regarding the newly-discovered facts exception, “a

petitioner must demonstrate that 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.” Commonwealth v. Brown, 111 A.3d 171, 176

(Pa.Super. 2015) (citations and quotation marks omitted).         In addition, a

petitioner must plead and prove specific facts demonstrating that his claim

was raised within the sixty-day time frame.




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       As to the governmental interference exception, the petitioner must

plead and prove that government officials interfered with his ability to present

a timely PCRA claim. Appellant alleges that he only recently learned that the

Commonwealth offered Claitt preferential treatment in pending cases and

sexual favors to testify against Appellant.

       The law is well settled that, “[q]uestions regarding the scope of the

statutory exceptions to the PCRA’s jurisdictional time-bar raise questions of

law; accordingly, our standard of review is de novo.” Commonwealth v.

Robinson, 185 A.3d 1055, 1059 (Pa.Super. 2018) (en banc) (quoting

Commonwealth v. Chester, 895 A.2d 520, 522 n.1 (Pa. 2006)).

       In its Pa.R.A.P. 1925(a) opinion, the PCRA court found that Claitt’s

favorable treatment in pending cases was thoroughly explored at trial.

Furthermore, it characterized the recantation claim as “garden variety,” and

found that Appellant had not exercised due diligence as he failed to contact

Claitt in three decades. PCRA Court Opinion, 12/27/17, at 5. Moreover, the

court maintained that the claims of misconduct were so “outlandish” and

“unreliable” as to permit a credibility-based dismissal without an evidentiary

hearing.3 Id. at 9. The court distinguished Medina and Commonwealth v.

____________________________________________


3 The exception for newly-discovered facts only requires that a petitioner
“prove that the facts were unknown to him and that he exercised due diligence
in discovering those facts.” Commonwealth v. Bennett, 930 A.2d 1264,
1270 (Pa. 2001). Although the PCRA court based its ruling in part on a lack
of due diligence, it also prematurely assessed the merits of the underlying



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Davis, 86 A.3d 883 (Pa.Super. 2014), as “extremely fact specific, presenting

unique circumstances.” PCRA Court Opinion, 12/27/17, at 7.

       We find that Appellant properly pled exceptions to the time-bar and

offered sufficient support to merit an evidentiary hearing on the timeliness of

the petition. Our decisions in Medina and Davis are instructive in this regard.

In Medina, the petitioner invoked the newly-discovered fact exception to the

PCRA    time    bar    based    on    recantation   testimony   from   the   primary

Commonwealth witness, who was a child when he testified. Appellant filed

the petition within sixty days as required. In that case, however, the PCRA

court afforded the petitioner an evidentiary hearing on the timeliness issue,

and thereafter concluded that he had presented credible evidence that his

petition was timely filed.       On appeal, the Commonwealth argued that the

petitioner had not demonstrated due diligence. This Court concluded that the

petitioner had no way of knowing that the two children had lied at trial because

a detective had threatened them. Furthermore, we found that a reasonable

investigation could not have revealed these circumstances since even the

prosecutors claimed at the PCRA evidentiary hearing that they did not know

of the detective’s conduct. We reasoned that if the prosecutors did not know,

petitioner and his counsel had no reason to look for such evidence, and



____________________________________________


claim. See Commonwealth v. Cox, 146 A.3d 221 (Pa.Super. 2016)
(rejecting notion that newly-discovered facts exception involves a merits
analysis of the underlying claim).

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concluded   that   the   petitioner’s    efforts   were   reasonable   under   the

circumstances. Id. at 1217.

      In Davis, supra, the testimony of two witnesses contributed heavily to

petitioner’s 1972 conviction of robbery and first-degree murder. In 2008, the

petitioner filed a PCRA petition in which he pled that he discovered facts

establishing that the witnesses had testified pursuant to an undisclosed

agreement with the Commonwealth, and that one of them had committed

perjury. Id. at 886. The PCRA court found that the newly-discovered facts

were publicly available in court transcripts with the exercise of due diligence,

and that petitioner had failed to satisfy the timeliness exception of Section

9545(b)(1)(ii).    We disagreed, holding that the petitioner’s efforts were

triggered when he received the affidavits signed by one of the witnesses. As

to the undisclosed deal offered by the Commonwealth, which the witnesses

had denied at trial, we held that the petitioner had no reason to seek out

transcripts of the testimony of the witnesses in unrelated cases to look for

such evidence. In other words, due diligence did not require the petitioner to

assume that the witnesses were committing perjury sanctioned by the

Commonwealth.

      The primary issue herein with regard to the newly-discovered fact

exception is whether Appellant exercised due diligence in learning that the




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prosecution’s principal witness against him recanted his testimony. 4 As we

recognized in Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa.Super.

2015), the due diligence inquiry is fact-sensitive and dependent upon the

circumstances presented.          Furthermore, “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.” Burton, supra, at 1071.

       Herein, Appellant pled timeliness exceptions and supported their

applicability with witness certifications and documentary evidence. The PCRA

court erred in rejecting the proffered witness certifications as insufficient. See

Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.Super. 2014) (citing

Commonwealth v. Brown, 767 A.2d 576 (Pa.Super. 2001)) (holding

affidavit requirement is “flatly contradicted by and is in clear derogation of

both the PCRA statute and the rules of criminal procedure”); see also

Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014) (holding that

procedurally, “a signed certification as to each intended witness stating the

witness’s name, address, date of birth and substance of testimony” is

sufficient to obtain an evidentiary hearing on an ineffectiveness claim for a

failure to present witness testimony).




____________________________________________


4Appellant’s second and third issues go to the merits of his claims. We cannot
reach them unless Appellant succeeds in proving a timeliness exception.

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      We find that Appellant has raised genuine issues of material fact

regarding the timeliness of the instant PCRA petition. An evidentiary hearing

is warranted to permit him to establish governmental interference, or to prove

that he was duly diligent in discovering the recantation, and that he filed this

petition within sixty days of when the claims could first have been presented.

      Accordingly, we vacate the order dismissing the petition and remand for

an evidentiary hearing on the timeliness issue. We direct the PCRA court to

consider Appellant’s request that counsel be appointed, as well as his

application for discovery.

      Order vacated. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/18




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