J-A21037-18

                                2018 Pa Super 310



 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 JOHN HART,                               :
                                          :
                    Appellant             :   No. 792 EDA 2018

          Appeal from the PCRA Order Entered February 28, 2018
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0001012-2005,
                         CP-23-CR-0004329-2005


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

OPINION BY McLAUGHLIN, J.:                     FILED NOVEMBER 21, 2018

     John Hart appeals from the order dismissing as untimely his petition for

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Hart maintains that the PCRA court erred in dismissing his petition

without an evidentiary hearing. We vacate and remand for further

proceedings.

     The relevant facts and procedural history of this case are as follows. The

Commonwealth’s case against Hart began when it received a letter on

February 14, 2005, from Michael Keenan, an inmate housed at the same

correctional facility as Hart. The letter was addressed to the Delaware County

District Attorney’s Office (“DA’s Office”) and detailed that Keenan was

approached by Hart who “[kept] asking [him] to have someone kill his

girlfriend.” Notes of Testimony (“N.T.”), Discovery Motion Hearing, 3/17/06,
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at 22. After receiving the letter, the DA’s office assigned Detective Thomas

Worrilow to investigate the matter. Id. at 46-48. Detective Worrilow

interviewed Keenan and charges were filed against Hart for a number of

crimes including “the specific crime of soliciting Michael Keenan” to arrange

the death of Hart’s girlfriend. Id. at 50-51.

      Hart’s counsel, Mark Much, Esq., in anticipation of trial, filed a discovery

motion for numerous documents. Relevant to this appeal, he sought “All

letters written to the Delaware County District Attorney or law enforcement

authorities by Michael Keenan relating to the defendant, John Hart.” Omnibus

Pretrial Motion, filed 8/10/05, at 8 ¶ 13 (unpaginated).

      At a discovery hearing held on January 10, 2006, the Commonwealth

stated that it “Provided counsel with all of the written materials, written letters

sent by Mr. Keenan to Detective Worrilow relating to this case, or derivatively

related to this case.” N.T., Motion Hearing, 1/10/06, at 10. In response,

Attorney Much explained to the court that he had provided a three-page letter

to the Commonwealth that contained all the discovery he had received at that

point. Id. at 27. The following items were listed regarding Keenan: “16 page

typed statement given by Michael Keenan on March 5, 2005; 4 page writing

submitted to District Attorney by Michael Keenan; 1 page writing prepared by

Michael Keenan with fingerprint analysis; and Michael Keenan’s criminal

record.” Discovery Letter, dated 1/10/06, at ¶¶ 9-12. The court explained that

“All correspondence involving the Commonwealth and the defendant as well




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as all correspondence between Michael Keenan” were discoverable. N.T.,

Motions Hearing, 1/10/06 at 27-28.

       On March 2, 2006, during a second discovery hearing, Attorney Much

made an oral motion to suppress all oral and written statements made by

Keenan. N.T., Motions Hearing, 3/2/06, at 6. Counsel explained that the

Commonwealth did not provide “Copies of all letters written to the Delaware

County District Attorney or law enforcement authorities by Michael Keenan,”

as ordered by the trial court. Id. at 6-7. The Commonwealth again assured

the court that it had provided defense counsel, “Any correspondence between

Michael Keenan and the Commonwealth regarding this or other defendants.”

Id. at 28. The court then instructed the Commonwealth to “Double check” its

discovery representations and continued the hearing. Id. at 35-36.

      On March 17, 2006, the trial court held a third discovery hearing, and

both Keenan and Detective Worrilow testified. The purpose of the hearing was

to “help identify what was discoverable.” N.T., 3/17/06, Motions Hearing, at

74. Keenan’s relevant testimony included that he did not think he would get

favorable treatment from the Commonwealth or help on his pending criminal

cases when he wrote the February letter. Id. at 20, 22, 41. A portion of

Attorney Much’s cross examination of Keenan consisted of questions to

determine if the February letter was “the only letter.” Id. at 23. Attorney Much

also acknowledged that he received a copy of the February letter. Id. at 23.

Detective Worrilow then testified that he never promised Keenan anything in

return for his information:

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J-A21037-18



     Q: Did you ever offer Michael Keenan anything of value in
     exchange for his information that he was giving you?

     A: No, sir.

     Q: Did you ever make any promises to him about what he would
     get in return for his information?

     A: No, sir.

Id. at 52. Towards the end of the hearing, the following was discussed:

     The Court: Okay. We - - then let’s turn to another issue. That’s
     the issue of outstanding discovery in regards to 4329-05. Other
     than the information that’s going to be addressed in the
     anticipated order that will be forwarded to the prison, are there
     any other loose ends, other things that need to be provided to the
     defendant?

     [Assistant District Attorney (“ADA”)]: Mr. Much and I discussed
     this before the motion begin [sic] this morning. You should
     understand that there is a large volume of materials that have
     been copied and turned over already. And I will agree to an order
     that directs the Commonwealth to turn out [sic] over any and all
     materials relating to this investigation. And Mr. Much and I agree
     that he can craft . . .

     The Court: Well, you’ve already told the Court again and again
     you’ve done that.
                                  ***

     Mr. Much: Judge, what [the ADA] and I had discussed before the
     hearing was that I was going to go back to my office today,
     actually this afternoon, and I was going to have George go
     through the discovery that’s been provided. And if we feel that we
     are not – we don’t have something then we’re going to identify it
     in a letter to [the ADA]. And he’s either going to provide it or give
     us a reason why he doesn’t need to or doesn’t . . .

     The Court: If there’s a problem the Court needs to be advised
     quickly.




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J-A21037-18



Id. at 101-102, 104-105 (emphasis added). The trial court denied counsel’s

oral motion to suppress on April 4, 2006.

        On June 27, 2006, Hart pled guilty to intimidation of witnesses or victims

for his act of soliciting Keenan to kill his girlfriend.1 The same day he also pled

guilty to simple assault and stalking for separate crimes unrelated to the

February letter. Hart did not file a direct appeal. In October 2010, Hart filed

his first pro se PCRA petition. The PCRA court appointed counsel, who filed an

amended petition. The PCRA court denied the petition, and this Court affirmed.

See Commonwealth v. Hart, 63 A.3d 817 (Pa.Super. 2012) (unpublished

memorandum).

        On November 17, 2017, PCRA counsel filed the instant petition giving

rise to this appeal. The petition alleged that appellate counsel had uncovered

in the DA’s files four letters from Keenan to Detective Worrilow while the

charges in reference to the February letter were pending against Hart:

        On September 19, 2017, while reviewing the contents of the
        District Attorney’s file in CP-23-CR-0004329-2005, [Hart]
        uncovered four letters which had been written by Michael Keenan
        to Detective Worrilow during the pendency of the prosecution of
        CP-23-CR-0001012-2005 and CP-23-CR-0004329-2005. The
        letters were never produced to Attorney Much or [Hart], but were
        uncovered directly from the District Attorney’s file by
        happenstance through civil litigation unrelated to the prosecution
        of these two cases.

PCRA Petition, filed 11/17/17, at 4 ¶ h (emphasis added).


____________________________________________


1   18 Pa.C.S.A. § 4952(a)(3).


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J-A21037-18


      In the first letter, which is not dated, Keenan states, “I’ll do what I got

to do as far as testafying [sic] but what I want is my probation hearing in front

of Koudelous right along with my case.” Id. at Ex. F-4. In the second letter

dated October 19, 2005, Keenan asks Detective Worrilow, “Please talk to the

DA and find out what the hell is going on with me. My court date is November

22nd and if the DA has no deal for me I plan on telling the judge everything.”

Id. at Ex. F-1. In the third letter dated January 10, 2006, the same date as

the first discovery motion hearing, Keenan states, “You told me that I will

definitly [sic] be going home. You promised and you told me. . . You told me

not to worry, I will be going home.” Id. at Ex. F-2. In the last letter, which is

undated, he wrote in part “You told me a month ago that I would be out in a

couple weeks. . . Let the D.A. cas [sic] explain to Erin [the victim] and her

parents why I didn’t testafy [sic]!” Id. at Ex. F-3.

      In its response to the petition, the Commonwealth claimed that “Counsel

Much stated 28 items of discovery were provided [sic] him by the prosecutor

Michael Galantino, Esquire, including Keenan letters.” See Commonwealth’s

Answer to Petition Filed Under the Post-Conviction Relief Act (PCRA), filed

12/8/17, at ¶ 7(b)(c) (citing to Discovery Letter dated 1/10/2006). It also

claimed that Keenan’s letter dated January 10, 2006 was provided to counsel.

Id. at ¶ 9. Hart then filed a reply brief, denying the Commonwealth’s assertion

that Attorney Much received any of the four letters. In a certification from




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J-A21037-18


Attorney Much attached to the reply brief, Attorney Much expressed the

following:

       “I do not recall receiving copies of the four letters attached to this
       certification prior to the guilty plea on June 27, 2006. I believe I
       first became aware of these letters when they were sent to me by
       Conor Wilson, current counsel for Mr.Hart, in November 2017.”

Reply Brief and Answer to New Matter, filed 12/22/17, at Attachment A.

       The PCRA court issued notice of its intent to dismiss the petition without

a hearing, concluding that “[n]o genuine issues concerning any material fact

exist and [Hart] is not entitled to post-conviction relief. No purpose would be

served by any further proceedings.” Notice of Intent to Dismiss, dated 1/22/18

at 1 (unpaginated);2 see Pa.R.Crim.P. 907. It also explained that Hart’s

petition was untimely and did not satisfy the “after discovered facts

exception.” Notice of Intent to Dismiss, at ¶ 12. Specifically, “[Hart] has not

alleged why the after discovered evidence at issue here could not have been

discovered between his plea in 2006 and September 19, 2017 . . .” Id. at ¶

26. Additionally, since “[t]wo of the letters attached to the Petition are not

dated . . . this [c]ourt has no way of ascertaining when they were written or

received and could have most certainly been received after the discovery

hearing.” Id. at ¶ 27. Hart replied to the 907 notice, and the PCRA court

dismissed the petition on February 28, 2018. This timely appeal followed.



____________________________________________


2The notice was docketed on January 23, 2018. See CP-23-CR-0004329-
2005.

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J-A21037-18


      On appeal, Hart asks us to review the following issue:

      Did the trial court not err in dismissing [Hart’s] Post Conviction
      Relief Act petition, which was filed on November 17, 2017, without
      conducting an evidentiary hearing in violation of Pa.R.Crim.P.
      908(a)(2), where [Hart] raised genuine issues of material fact in
      his petition and reply brief, filed December 22, 2017, and
      submitted an affidavit of a central witness certifying the factual
      discrepancy to be raised at a hearing?

Hart’s Br. at 4.

      First, we address the PCRA court’s contention that Hart’s petition was

untimely. See Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). A petitioner has one year from the date the judgment of sentence is

final to file a first or subsequent PCRA petition, unless a statutory exception

to the one-year deadline applies. See Commonwealth v. Burton, 158 A.3d

618, 701 (Pa. 2017). 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.A. § 9545(b)(3).

      Beyond a year, a petitioner must plead and prove at least one of the

time-bar exceptions. These exceptions are:

      (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


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J-A21037-18


      (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 exception within

60 days of the date that the claim could have been raised. See 42 Pa.C.S.A.

§ 9545(b)(2).

      Hart’s judgment of sentence became final on July 27, 2006, when the

time to appeal to this Court expired. See Pa.R.A.P. 903. Therefore, any

petition filed by July 27, 2007, would have been timely. Thus, the instant

petition filed a decade later is untimely unless an exception applies. As stated

above, Hart pled the newly discovered facts exception. Hart had until

November 20, 2017, to file a petition based on his assertion that he discovered

the letters on September 17, 2017. See 1 Pa.C.S.A. § 1908 (“Whenever the

last day of such period shall fall on Saturday or Sunday, . . . such day shall be

omitted from the computation.”). The Commonwealth does not dispute that

Hart raised the claim within 60 days of the date on which he could have first

raised it. See Commonwealth’s Br. at 2-20; see also 42 Pa.C.S.A. §

9545(b)(2).

      When reviewing the denial of a PCRA petition, this Court’s standard of

review is limited “to whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Pew, 189 A.3d 486, 488 (Pa.Super. 2018). When reviewing the denial of a


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J-A21037-18


PCRA petition without an evidentiary hearing, we “determine whether the

PCRA court erred in concluding that there were no genuine issues of material

fact and in denying relief without an evidentiary hearing.” Commonwealth

v. Burton, 121 A.3d 1063, 1067 (Pa.Super. 2015) (quoting Commonwealth

v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008)), affirmed, 158 A.3d 618

(Pa. 2017). “[W]hen there are no disputed factual issues, an evidentiary

hearing is not required . . . .” Commonwealth v. Morris, 684 A.2d 1037,

1042 (Pa. 1996). We review the PCRA court’s legal conclusions de novo. See

Burton, 121 A.3d at 1067.

      The newly discovered facts exception, Section 9545(b)(1)(ii), relates to

whether a court has jurisdiction to consider an untimely petition. See Burton,

158 A.3d at 629. It does not require a merits analysis. See Commonwealth

v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (holding merits analysis is not

required for newly discovered facts exception). A petitioner satisfies the newly

discovered facts exception when the petitioner pleads and proves that “(1) the

facts upon which the claim [is] predicated were unknown and (2) could not

have been ascertained by the exercise of due diligence.” Bennett, 930 A.2d

at 1272 (citing 42 Pa.C.S.A. § 9545(b)(1)(ii) (emphasis added)). Due

diligence “requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim for collateral relief,”

but does not require “perfect vigilance [or] punctilious care.” Burton, 121

A.3d at 1071.


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J-A21037-18


      Here, Hart properly invoked the newly discovered facts exception at

Section 9545(b)(1)(ii). Hart’s petition explained that he did not know of the

existence of these letters and supported this contention with a certification

from his trial counsel. He also asserted that these letters could not have been

ascertained through due diligence as he was granted otherwise-restricted

access to the DA’s office files, in connection with an unrelated civil matter.

See PCRA Petition at 4 ¶ h; see also Reply Br. at ¶ 8. Additionally, he noted

“the Commonwealth represented to the Court that it had turned over to the

defense all letters Michael Keenan wrote” to the DA’s office or law

enforcement. Reply Br. at ¶ 8. Thus, Hart could not be expected to assume

that the Commonwealth may not have been forthright when it reassured him

that no other correspondence existed. See Commonwealth v. Davis, 86

A.3d 883, 890-91 (Pa.Super. 2014) (stating due diligence does not require

defendant   to   make    unreasonable     assumptions    such    as   assuming

Commonwealth’s witnesses committed perjury when stating that no deal was

offered to them by the Commonwealth). Moreover, no amount of “reasonable

efforts” to find these letters would have gained him access to the DA’s files as

they are not public records. See, e.g., 65 P.S. § 67.708(b)(16) (“a record of

an agency relating to or resulting in a criminal investigation…” is not a public

record for purposes of Right to Know law).

      While the PCRA court concluded that Hart did not present genuine issues

of material fact to warrant an evidentiary hearing, we disagree. Here, it is


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J-A21037-18


disputed as to whether these letters were given to Hart. The Commonwealth

maintains that the letters were passed on to trial counsel while Hart maintains

that they were not. Thus, there are “disputed factual issues,” regarding these

letters and as a matter of law the court was required to order an evidentiary

hearing. Morris, 684 A.2d at 1042; see Pa.R.Crim.P. 908(A)(2) (the judge

shall order a hearing when a PCRA petition raises material issues of fact).

       Therefore, we vacate the order of the court and remand this case for

the PCRA court “acting as fact finder,” to determine whether Hart has met “the

‘proof’ requirement under section 9545(b)(1)(ii),” i.e., whether the letters

were in fact unknown to Hart and whether he exercised due diligence to obtain

the letters. Bennett, 930 A.2d at 1274.3

       Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/18




____________________________________________


3 In light of this disposition, we do not address Hart’s remaining claims of an
alleged Brady violation and ineffective assistance of counsel. See Hart’s Br.
at 14, 22.

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