J-S37020-16


                                  2016 PA Super 117

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

LAKISHA MARIE WARD-GREEN,

                            Appellee                  No. 1337 WDA 2015


                 Appeal from the PCRA Order August 26, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009803-2011


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

OPINION BY SHOGAN, J.:                                 FILED JUNE 10, 2016

       The Commonwealth of Pennsylvania appeals from the order granting

post-conviction relief to Lakisha Marie Ward-Green.1 We reverse.

       Pursuant to a stipulation,2 the affidavit of probable cause provides the

factual basis for this case:

____________________________________________


1
  Ms. Ward-Green testified that her probation would end in January of 2016.
N.T., 8/26/15, at 77. To be eligible for post-conviction relief, a PCRA
petitioner must establish that she “has been convicted of a crime under the
laws of this Commonwealth and is at the time relief is granted: (i)
currently serving a sentence of imprisonment, probation or parole for
the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i) (emphases supplied). Here, the
PCRA court granted Appellee relief while she was still on probation. Order,
8/26/15. Moreover, this is a timely Commonwealth appeal from the final
order granting Appellee collateral relief. Thus, we have jurisdiction to
entertain this appeal.
2
    N.T., 8/26/15, at 85.
J-S37020-16


     On 09-03-2010 at approximately 1512 hours Penn Hills Police,
     Fire, and EMS responded to a traffic collision that occurred on
     Stotler Road. . . . It was reported that the crash involved a
     school bus and a passenger vehicle. Your affiant was advised by
     the first officer on the scene that there was a serious injury and
     medics were requested to expedite.

     Upon arrival your affiant observed Penn Hills School bus #326,
     and a red Chevrolet Cobalt were involved in this crash and were
     at final rest. Your affiant observed tire marks from the Chevrolet
     leading to the area of impact. The tire marks showed that the
     Chevrolet was traveling down (south) Stotler Road, veered to
     the right, left the roadway, struck a utility pole, traveled
     backwards off the utility pole and struck the school bus as it was
     traveling up (north) on Stotler Road. The Chevrolet sustained
     severe front damage and moderate left rear damage. The school
     bus sustained minor to moderate left front and left side damage.

     The front passenger of the Chevrolet, Robert Chambers, was
     being attended to by Medics and was transported to UPMC
     Presbyterian.    Your affiant was later advised that Robert
     Chambers was pronounced deceased at the hospital.              On
     [September] 4, 2010, an autopsy was performed on Robert
     Chambers by Dr. Baiyang Xu of the Allegheny County Medical
     Examiner’s Office. Dr. Xu opined that Robert Chambers died as
     a result of a cervical spine fracture due to blunt force trauma of
     the head, sustained as a passenger in a motor vehicle accident.

     Your affiant spoke with the operator of the Chevrolet. She was
     visibly upset and crying. She was also complaining of pain in her
     chest.    This officer obtained her identity as the defendant,
     Lakisha Ward-Green.       The defendant stated that she was
     traveling down Stotler Road when a vehicle pulled out in front of
     her, she braked hard, swerved right and struck the pole. The
     defendant stated that she just picked [Robert Chambers up]
     from the high school and was taking him home. The defendant
     stated that she didn’t know how fast she was traveling.

     The operator of the school bus, Ms. Debra Casale, stated that
     she was traveling up Stotler Road and observed a red vehicle
     traveling down Stotler Road at a high rate of speed. The bus
     operator stated that another vehicle pulled out from her right
     side of the roadway, crossed in front of her and traveled down
     Stotler Road. The bus operator stated that the red vehicle

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     avoided striking this vehicle, went to its right up the hillside, hit
     a pole, and then struck her bus.

     The operator of the vehicle that pulled out, Mr. Edward Reily,
     stated that he was parked on the east bound side of the roadway
     pointing south. This operator stated that when he went to pull
     out he observed a red vehicle traveling down Stotler Road but
     believed that it was far enough away that he could pull out
     safely and did so. This operator stated that as he traveled down
     Stotler Road he passed a school bus traveling up Stotler Road,
     then heard a crash, looked into his rear view mirror and
     observed the red vehicle striking a utility pole then the bus. This
     operator stated that he turned around and returned to the scene
     to see if he could help in any way.

     While on the scene investigating there were numerous
     individuals out. Many approached your affiant and stated that
     the red Chevrolet was traveling at a high rate of speed and that
     concerned them. There were also numerous juveniles along the
     roadside and in front of the homes along Stotler Road.

     Your affiant contacted Allegheny County PD for assistance in
     conducting a mechanical safety inspection of the Chevrolet
     vehicle and attempt to down load date from the event data
     recorder/airbag control module. Your affiant requested and was
     granted search warrants to conduct said inspections. On 09-29-
     2010 Detectives Ruckel and Scott of ACPD assisted this officer
     and conducted said searches. The mechanical inspection found
     no mechanical problems with the vehicle. The data was down
     loaded from the event data recorder and showed that the
     Chevrolet was traveling 75 mph 5 seconds prior to the crash with
     71 percent throttle engaged. The posted speed limit on this road
     way is 35 mph. The Chevrolet was traveling 40 mph over the
     posted speed limit.

Affidavit of Probable Cause, 6/2/11, at 2–3.

     The Commonwealth charged Ms. Ward-Green with homicide by

vehicle, involuntary manslaughter, driving vehicle at safe speed, maximum

speed limits, and reckless driving.     Criminal Information, 8/26/11.       On

August 8, 2012, pursuant to a negotiated agreement, Ms. Ward-Green pled

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guilty    to   involuntary   manslaughter   and   reckless   driving,   and   the

Commonwealth withdrew the remaining charges. On October 23, 2012, the

trial court sentenced Ms. Ward-Green to imprisonment for one to two years

followed by three years of probation.

         Ms. Ward-Green filed a motion for modification or reconsideration of

her sentence on October 23, 2012, to which the Commonwealth responded

on November 1, 2012.         On November 27, 2012, the trial court granted

Ms. Ward-Green’s motion and permitted her to withdraw her guilty plea.

The trial judge then recused himself.

         Before a new trial judge, Ms. Ward-Green entered a negotiated plea

agreement on January 10, 2013, pursuant to which she pled guilty to

involuntary manslaughter and reckless driving, and the Commonwealth

withdrew the remaining charges. Ms. Ward-Green was sentenced the same

day to imprisonment for four to eight months, followed by three years of

probation during which she was to conduct speaking engagements about

reckless driving. Because Ms. Ward-Green had 121 days of credit for time

served, the trial court ordered her immediately paroled.

         Ms. Ward-Green filed a PCRA petition on March 24, 2015, seeking

withdrawal of her guilty plea based on a substantive claim of after-

discovered evidence that “the crash was due to a mechanical failure in her

vehicle caused by a defectively designed ignition switch.” Petition, 3/24/16,

at ¶ 11. The Commonwealth responded on April 21, 2015, that Ms. Ward-


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Green’s petition was time-barred.           On August 26, 2015, the PCRA court

permitted Ms. Ward-Green to file an amended PCRA petition, conducted a

hearing, granted Ms. Ward-Green’s amended petition, and vacated her guilty

plea.         This   timely   appeal   by   the     Commonwealth       followed.      The

Commonwealth and the trial court have complied with Pa.R.A.P. 1925.

        The     Commonwealth       presents       the   following   questions   for   our

consideration:

        I.      Whether the PCRA court erred in granting [Ms. Ward-
                Green] post-conviction relief in the form of withdrawal of
                her negotiated guilty plea where the PCRA petition was
                untimely filed?

        II.     Whether the PCRA court erred in granting [Ms. Ward-
                Green] post-conviction relief in the form of withdrawal of
                her negotiated plea on her after-discovered evidence
                claim?

Commonwealth’s Brief at 4.

              This Court analyzes PCRA appeals “in the light most
        favorable to the prevailing party at the PCRA level.”
        Commonwealth          v.    Rykard,     55   A.3d    1177,    1183
        (Pa.Super.2012). Our “review is limited to the findings of the
        PCRA court and the evidence of record” and we do not “disturb a
        PCRA court’s ruling if it is supported by evidence of record and is
        free of legal error.” Id. Similarly, “we grant great deference to
        the factual findings of the PCRA court and will not disturb those
        findings unless they have no support in the record. However, we
        afford no such deference to its legal conclusions.” Id. (citations
        omitted). “Where the petitioner raises questions of law, our
        standard of review is de novo and our scope of review is
        plenary.” Finally, we “may affirm a PCRA court’s decision on any
        grounds if the record supports it.” Id.

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (quoting

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014)).

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       The Commonwealth first argues that Ms. Ward-Green’s PCRA petition

was untimely and, therefore, the PCRA court lacked jurisdiction to grant

Ms. Ward-Green collateral relief. Commonwealth’s Brief at 18. Additionally,

the Commonwealth contends that the PCRA court’s “analysis of the merits of

the underlying after-discovered evidence claim was not appropriate to the

PCRA    court’s   determination   of   whether   jurisdiction   existed   under

Section 9545(b)(1)(ii).” Id. at 21. We agree on both fronts.

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). 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).

       Our review of the record reflects that Ms. Ward-Green was sentenced

on January 10, 2013, and she did not file a direct appeal from the judgment

of sentence. Accordingly, Ms. Ward-Green’s judgment of sentence became




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final on February 11, 2013,3 when the time for filing an appeal to this Court

expired. See 42 Pa.C.S. § 9545(b)(3) (providing that “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.”). Therefore, Ms. Ward-

Green had to file the current PCRA petition by February 11, 2014, in order

for it to be timely.     Ms. Ward-Green did not file the instant PCRA petition

until March 24, 2015.         Thus, Ms. Ward-Green’s instant PCRA petition is

patently untimely.

       However, if a petitioner does not file a timely PCRA petition, her

petition may nevertheless be received when the petition alleges, and the

petitioner proves, that any of the three limited exceptions to the time for

filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1), is met. 4        “That
____________________________________________


3
   Technically, Ms. Ward-Green’s sentence became final on February 9,
2013; however, that day was a Saturday. See 1 Pa.C.S. § 1908 (providing
that when a statutory filing deadline falls on a Saturday, Sunday, or holiday,
the deadline will be extended to the next business day).
4
    The exceptions to the timeliness requirement 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
(Footnote Continued Next Page)


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burden necessarily entails an acknowledgment by the petitioner that the

PCRA petition under review is untimely but that one or more of the

exceptions apply.” Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999).   If a petitioner asserts one of these exceptions, she must file her

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate [her] claim was raised within the sixty-day

time frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d

1164, 1167 (Pa. Super. 2001).

      Here, Ms. Ward-Green invoked the new-facts exception embodied in

section 9545(b)(1)(ii). Amended PCRA Petition, 8/26/15, at ¶¶ 12–14, 16.

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

appeal denied, 125 A.3d 1197 (Pa. 2015) (differentiating jurisdictional new-

facts exception and substantive after-discovered evidence claim). Ms. Ward-

Green averred: “Unbeknownst to Ms. Ward-Green until January 23, 2015,

the crash and fatality were both caused by a defectively designed ignition
                       _______________________
(Footnote Continued)

      (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. § 9545(b)(1)(i), (ii), and (iii).




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switch.” Amended PCRA Petition, 8/26/15, at ¶ 11. According to Ms. Ward-

Green, January 23, 2015, was the date on which she received an expert

report “indicating that the crash was due to the failure of a defective ignition

switch,” and “[s]he filed her original [PCRA] petition within 60 days of

receiving that [report].” Id. at ¶ 16 (citing Joint Exhibit C: Expert Report of

Dr. Alfred Leo Baxley).

      In response, the Commonwealth argues that Dr. Alfred Leo Baxley’s

report “is not an after-discovered fact because it relies upon information that

has been available since the entry of [Ms. Ward-Green’s] negotiated guilty

plea.” Commonwealth’s Brief at 20. According to the Commonwealth:

      It was known at the time of her negotiated guilty plea that the
      passenger airbag did not deploy, the ignition switch moved from
      the run to accessory position two seconds before impact, the
      power brakes were not activated after two seconds before
      impact, and at one second before impact the vehicle had zero
      power.

                                    * * *

           All of the information about what occurred to [Ms. Ward-
      Green’s] vehicle was contained in the September 29, 2010 Bosch
      CDR [crash data retrieval] Report and available at the time
      [Ms. Ward-Green] entered her negotiated guilty plea on
      January 10, 2013.

Id. at 20, 21 (citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780

(Pa. 2000)). Additionally, the Commonwealth contends:

      Dr. Baxley, like the NHTSC [National Highway Traffic Safety
      Commission], believed certain GM vehicles had defective ignition
      switches that resulted in the loss of power and non-deployment
      of airbags. Based on the Bosch CDR Report for [Ms. Ward-
      Green’s] vehicle, Dr. Baxley certainly could have offered an

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      opinion in [Ms. Ward-Green’s] case prior to the 2014 GM
      admission that the ignition switch in her vehicle was defective.
      The possibility of a defective ignition switch cannot be said to
      have been unknown.

Id. at 24 (citation omitted).

      This Court recently explained that:

      [t]he 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.
      Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
      1271 (2007). Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. Commonwealth
      v. Carr, 768 A.2d 1164, 1168 (Pa.Super.2001). A petitioner
      must explain why he could not have learned the new fact(s)
      earlier with the exercise of due diligence. Commonwealth v.
      Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
      Commonwealth v. Monaco, 996 A.2d 1076, 1080
      (Pa.Super.2010), appeal denied, 610 Pa. 607, 20 A.3d 1210
      (2011). This rule is strictly enforced. Id. 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. Marshall, 596 Pa. 587, 596, 947
      A.2d 714, 720 (2008) (emphasis in original).

Brown, 111 A.3d at 176.

      Here, the PCRA court rejected the Commonwealth’s argument:

      The Commonwealth is correct that the loss of power steering,
      power brakes, airbag failure, and the position of the ignition
      switch were known prior to the guilty plea. However, the
      Commonwealth overlooks the fact that these disparate facts
      were not of consequence until after the congressional hearings in
      early 2014 and the subsequent GM Recall in February of 2014.

             The Commonwealth rests its argument upon the case of
      Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000).
      While both cases do involve the usage of expert opinion in an
      effort to achieve collateral relief, there is a fundamental
      difference between these cases in the formation and content of

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     the expert opinions in question. In Gamboa-Taylor, defendant
     Gamboa-Taylor, contended that the expert opinion used to
     determine his competency for trial was flawed due to the
     ineffective assistance of his trial counsel. Id. at 782. Gamboa-
     Taylor contended “that the ‘facts’ which form the bases of these
     claims were not knowable until he was advised of their existence
     by present counsel.” Id. at 786. Gamboa-Taylor attempted to
     support his argument by providing “affidavits from two medical
     experts who examined him prior to trial that stated their
     opinions as to Gamboa-Taylor’s medical competence at trial
     would have been different had they been apprised of other
     information.” Id. The Superior Court rejected this reasoning as
     a basis for relief stating that an “expert’s change of opinion from
     that given at trial, which is based merely on the examination of
     additional information that was available at the time the initial
     opinion was proffered, does not constitute after-discovered
     evidence (citation omitted).       Certainly, in keeping with this
     rational a completely new opinion would also not be recognized
     as after-discovered evidence.”          Id.    The Commonwealth
     maintains that “an expert opinion cannot be an after-discovered
     fact, because it relies on facts that have been readily available
     since the time of the entry of the guilty plea.”
     Commonwealth’s Answer to Post-Conviction Relief Act
     Petition at p.p. 7. This [c]ourt reads the ruling of Gamboa-
     Taylor differently, as the Supreme Court went on to state: “the
     issue to which this purportedly newly-discovered evidence
     speaks is whether Gamboa-Taylor was mentally fit at the time of
     trial. All the facts regarding his mental state, if not known, were
     surely ascertainable by the exercise of due diligence before
     Gamboa-Taylor’s trial.” Commonwealth v. Gamboa-Taylor, 753
     A.2d 780, 786–787 (Pa. 2000). This [c]ourt believes it is quite
     clear that in Gamboa-Taylor, the Supreme Court is addressing
     after-discovered evidence within the context of an ineffective
     assistance of counsel claim. Id. at 787. Such a standard and
     reasoning clearly does not apply in this case. [Ms. Ward-Green]
     is not asserting that her counsel was ineffective[. I]n fact by not
     presenting a defense which (at the time) could at best be
     described as a conspiracy theory, and instead encouraging a
     negotiated plea, counsel’s actions were prudent.

           Furthermore, [Ms. Ward-Green’s] case is distinguishable
     from Gamboa-Taylor in that there is no argument that the
     revelation of GM’s concealment of this defect was unavailable at
     the time of [Ms. Ward-Green’s guilty plea]. The Commonwealth

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     argues that the disparate pieces necessary to indicate the
     presence of the defect were in existence at the time of
     [Ms. Ward-Green’s] plea, and they are correct.          There is,
     however, one important and distinct term which eliminates the
     congruity between Gamboa-Taylor and the instant case:
     availability. It would be a manifest injustice for this [c]ourt to
     uphold [Ms. Ward-Green’s] conviction when it is clear that no
     agency nor expert in the Nation (and most certainly [Ms. Ward-
     Green] herself) had the knowledge to convert these disparate
     facts into a cogent defense.       Quite simply, the necessary
     information to do so was unavailable.           In fact, by the
     Commonwealth’s logic, a Petitioner who has uncovered
     exculpatory DNA evidence after a conviction sustained before the
     acceptance of DNA as scientific evidence; [sic] must have their
     conviction upheld.    Because even though DNA was not yet
     admissible or discovered; [sic] the blood or semen sample that
     was subsequently tested, was still known of at the time of trial,
     and thus cannot constitute after-discovered evidence. Such an
     argument has already been litigated and decided by the Superior
     Court as long ago as 1992. Commonwealth v. Brison, 618 A.2d
     420 (Pa. Super. Ct. 1992) (adopting case law of sister
     jurisdictions regarding DNA as after discovered evidence.) In
     fact, 42 Pa. C.S.A. § 9543.1 for Post Conviction DNA Testing
     was enacted in 2002 to address such concerns. This [c]ourt
     sees no difference between the instant case and this [c]ourt’s
     hypothetical. This case is distinguishable from Gamboa-Taylor,
     because the knowledge upon which Dr. Baxley bases his opinion
     was unavailable as it was concealed at the time of [the plea].
     According to Dr. Baxley, at the time of the accident [neither] he,
     nor any other expert, would have been able to examine the data
     in this case and come to the conclusion that there was a
     dangerous defect contained in the ignition switch of [Ms. Ward-
     Green’s] vehicle. PCRA Hearing at p.p. 59 line 5. Dr. Baxley
     stated that “The issue here is also that General Motors had
     claimed for decades that if there was a power loss during a crash
     event, the air bags would still deploy. And it was found out
     after, as part of all the investigations and Congressional
     Hearings that took place in early 20[14], that was simply not
     true.” PCRA Hearing p.p. 59 line 15. The official transcript
     from the Congressional Hearing on this matter supports Dr.
     Baxley’s claim:

          Senator McCaskill: I want to talk just for a minute
          about the nature of the defect...Acting Director

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          Friedman says that GM’s own technical specifications
          for the Cobalt call for the airbag system to contain
          an independent power source that is armed and
          ready to fire for up to 60 seconds after the vehicles
          [sic] power is cut off. That is in GM’s specifications
          to NHTSA.

     Examining    the    GM   Recall  and   NHTSA’S  Defect
     Investigation Process: Hearing before the Senate
     Subcomm. on Consumer Prot., Prod. Safety, and
     Insurance, 113th Cong. 33–32 (2014) (Statement of Sen.
     Claire McCaskill, Chairwoman, Senate Subcomm.).

     Not only was the defect in the ignition switch concealed by
     General Motors, there were several National Highway
     Transportation Safety Administration (“NHTSA”) reports, which
     concluded there was no defect to be found.               NHTSA
     acknowledged at the 2014 Congressional Hearing that its reports
     were incorrect when Acting Administrator Hon. David J. Freeman
     wrote in his statement:

          I want to close on one important note. Our ability to
          find defects also requires automakers to act in good
          faith and provide information on time.         General
          Motors has now provided new information definitively
          linking airbag non-deployment to faulty ignition
          switches, identifying a part change, and indicating
          potentially critical supplier conversations on airbags.
          Had this information been available earlier, it would
          have likely changed the NHTSA’s approach to this
          issue.

     Examining    the  GM    Recall  and NHTSA’S  Defect
     Investigation Process: Hearing before the Senate
     Subcomm. on Consumer Prot., Prod. Safety, and Ins.,
     113th Cong. 46 (2014) (Statement of Hon. David J.
     Freeman, Acting Director, NHTSA.).

     It is clear to this court that no expert, nor Ms. Ward-Green,
     could have known about the significance or effect of the ignition
     switch being in the accessory position. For an expert to hold
     otherwise at the time of [the plea] would be disregarded as
     nothing more than a conspiracy theory, as NHTSA had already
     issued findings on the issue. Gamboa-Taylor presented a case

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      where the expert was unaware of a readily discoverable fact —
      which he later maintained would have changed his opinion; and
      additional experts were called to attest that such a fact would
      change any expert’s opinion.      In [Ms. Ward-Green’s] case,
      Dr. Baxley is maintaining that any expert Ms. Ward-Green would
      have consulted would have been operating on facts that were
      simply untrue, concealed by GM, and incorrectly supported by
      NHTSA. Even the broadest definition of due diligence could not
      encompass the expectation that [Ms. Ward-Green] was capable
      of uncovering this defect. Therefore, the Commonwealth’s claim
      is without merit.

PCRA Court Opinion, 12/23/15, at 6–12 (some internal citations omitted).

      Upon review, we agree with the PCRA court that the Commonwealth’s

reliance on Gamboa-Taylor is misplaced.          Therein, the Pennsylvania

Supreme Court rejected the PCRA petitioner’s “attempt to interweave

concepts of ineffective assistance of counsel and after-discovered evidence

as a means of establishing jurisdiction.” Gamboa-Taylor, 753 A.2d at 785.

The Supreme Court opined and concluded as follows:

      Although [a]ppellant formulates his assertions here in terms of
      the discovery of new facts not previously known to him, it is
      readily apparent that [a]ppellant’s argument, at its essence, is a
      claim for ineffective assistance of PCRA counsel layered on top of
      trial counsel’s ineffectiveness. This Court has stated previously
      that a claim for ineffective assistance of counsel does not save
      an otherwise untimely petition for review on the merits.

                                   * * *

            In sum, a conclusion that previous counsel was ineffective
      is not the type of after-discovered evidence encompassed by the
      exception.

Id.   In the case before us, Ms. Ward-Green did not raise ineffective

assistance of counsel as a new fact that was “unknown to [her] and that


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could not have been ascertained through the exercise of due diligence.” 42

Pa.C.S. § 9545(b)(1)(ii). Thus, we distinguish Gamboa-Taylor.

      Next, we find support in the record for the Commonwealth’s argument

and the PCRA court’s affirmation that the loss of power steering, power

brakes, airbag failure, and the position of the ignition switch were facts

known to Ms. Ward-Green at the time of her guilty plea. Commonwealth’s

Brief at 20; PCRA Court Opinion, 12/28/15, at 6, 9. All of these facts were

established by the vehicle event data recorder and contained in the resulting

Bosch crash data retrieval report (“Bosch report”). N.T., 8/26/15, at 29–36.

We also find support in the record for the PCRA court’s determination that

“[the] disparate facts were not of consequence until after the congressional

hearings in early 2014 and the subsequent GM Recall in February of 2014.”

PCRA Court Opinion, 12/28/15, at 6 (citation omitted).         According to

Dr. Baxley, he could not have testified at the time of Ms. Ward-Green’s plea

to a causal connection between the ignition switch and non-deployment of

the air bags because GM “had claimed for decades that if there was a power

loss during a crash event, the air bags would still deploy. And it was found

out after, as part of all the investigations and congressional hearings that

took place in early 2014, that that simply was not true.” N.T., 8/26/15, at

59.

      However, we do not agree with the PCRA court’s conclusion that the

necessary information to convert the disparate facts into a cogent defense


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was “unavailable” to Ms. Ward-Green before January 23, 2015, the date Ms.

Ward-Green received Dr. Baxley’s expert report.        PCRA Court Opinion,

12/28/15, at 9.    Rather, we conclude that Ms. Ward-Green failed in her

initial obligation to establish jurisdiction in the PCRA court by alleging and

proving that the facts upon which her claim is predicated—those in

Dr. Baxley’s expert report—were unknown to her and could not have been

ascertained by the exercise of due diligence before January 23, 2015.      42

Pa.C.S. § 9545(b)(1)(ii).

      Following the September 3, 2010 accident, several events known to

Ms. Ward-Green laid the groundwork for a cogent defense and/or and the

filing of a PCRA petition.   In September of 2010, the Bosch report was

available. N.T., 8/26/15, at 31. That report revealed Ms. Ward-Green’s high

speed at five seconds before impact, her reduced speed at four through two

seconds before impact, movement of the ignition switch to accessory mode

at two seconds before impact, zero power at one second before impact, the

path of the vehicle, and non-deployment of the airbags. In April of 2014,

Ms. Ward-Green received a recall notice from GM regarding the ignition

switch on her Cobalt. N.T., 8/26/15, at 79. In August of 2014, Ms. Ward-

Green consulted an attorney, who filed a claim against GM’s Settlement

Fund on Ms. Ward-Green’s behalf. Id. at 80. In October of 2014, Ms. Ward-

Green received notice from the GM Settlement Fund that her claim was

valid. Id. Also in late October of 2014, Attorney Robert Hilliard, who had


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worked with Dr. Baxley on other GM ignition switch cases, began

representing Ms. Ward-Green. Id. at 83.

      Giving Ms. Ward-Green the benefit of the doubt, we conclude that,

with the exercise of due diligence, the facts upon which she bases her new-

facts claim could have been ascertained as of late October of 2014.

Counsel’s explanation for not filing within sixty days thereof is troubling:

“Given the holidays, it was a little slower than usual, but then we

immediately went to find an expert to analyze whether or not there was a

defect in this vehicle.” N.T., 8/26/15, at 13. Ms. Ward-Green did not retain

that expert, Dr. Baxley, until January of 2015.     Id. at 52.   Moreover, the

only new fact is the expert analysis of the disparate facts that were known to

Ms. Ward-Green as early as September of 2010 and as late as October of

2014. We consider Commonwealth v. Lambert, 765 A.2d 306, 342 (Pa.

Super. 2000), instructive on this specific point.

      Therein, the mother of a stabbing victim testified that she heard her

dying daughter identify Ms. Lambert as the perpetrator. After a convoluted

procedural history, Ms. Lambert presented experts at a PCRA hearing on the

scientific impossibility of the victim’s dying declaration. Lambert, 765 A.2d

at 337–340.    In response, the Commonwealth presented the testimony of

medical experts in support of the dying declaration. Id. at 340–341. The

majority analyzed the proffered expert opinion under section 9545(b)(1)(ii),

as follows:


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           For purposes of our PCRA hearing, all this testimony comes
     under the heading of “after-discovered evidence.” On the first
     issue, all of this evidence was available at trial. The essential
     facts, the autopsy photographs, the autopsy report and the
     essence of the dying declaration, were all well known in 1991
     and 1992. Had Appellant chosen to do so, she could have called
     expert witnesses to testify as to what Drs. Baden, Smialek and
     Larson said at the PCRA hearing. Nothing about the essential
     facts as to the dying declaration has changed. The only after-
     discovered evidence is the expert analysis of those facts....
     Expert opinion may well be a subsequent interpretation of the
     available evidence and might be “after-discovered” in the sense
     that no one inquired as to these opinions at the time of trial. But
     the essential facts, the evidence on which these opinions are
     based, are the same today as they were in 1991 and 1992.

Lambert, 765 A.2d at 341–342.

     In this case, the initial facts from the Bosch report were the same on

September 3, 2010, the date of the accident, as they were on January 23,

2015, the date of Dr. Baxley’s expert report. N.T., 8/26/15, at 53–54. The

additional facts regarding GM’s defective ignition switch and non-deployment

of air bags were available as early as February of 2014, the date of the GM

recall, and as late as October of 2014, the date GM notified Ms. Ward-Green

that her claim against the settlement fund was valid. Id. at 57–59, 80.

     Dr. Baxley testified that one should—and he did—look at the Bosch

report to determine if an airbag should have deployed. N.T., 8/26/15, at 38,

53 (referring to Joint Exhibit C at page 5 of 10). According to Dr. Baxley,

“the crash event here was almost double the mandatory air bag deploy value

for a 2007” Cobalt; therefore, the air bags should have deployed. Id. at 42.

Dr. Baxley continued, “I believe that it would improve the chances of the


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passenger surviving the injuries if the front air bags had deployed.” Id. at

43. Dr. Baxley reached this conclusion based on information taken from the

Bosch report. Id. at 43–45, 54. Dr. Baxley also concluded from the Bosch

report that Ms. Ward-Green “traveled somewhere between 70 feet and 150

feet with no power steering, no power brakes and ultimately no air bags[.]”

Id. at 46. In Dr. Baxley’s expert opinion, Ms. Ward-Green lost control of the

car somewhere between 140 feet and 70 feet before striking the pole

“because she could not operate it without power steering and she did not

have her power brakes any longer[.]”     Id. at 49.   As the Commonwealth

asserts, all of these initial facts were available at the time of Ms. Ward-

Green’s plea, and she “could have found an expert to analyze them and offer

possible explanations prior to GM’s 2014 admission that a defective ignition

switch was present in [Ms. Ward-Green’s] vehicle.” Commonwealth’s Brief

at 22–23.

     As for analysis of the additional facts, Dr. Baxley stated that

knowledge of the defective switch was not “capable of even being known

until after the recall occurred in February and March of 2014.”         N.T.,

8/26/15, at 49.     However, Dr. Baxley confirmed the Commonwealth’s

assertion that the National Highway Traffic Safety Commission (“NHTSC”)

began investigating certain GM vehicle crashes that involved defective

ignition switches and the loss of power and non-deployment of airbags in

2005. Id. at 66–67. Also, Dr. Baxley testified that he had testified in “many


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GM ignition switch system cases,” and “worked on several GM defective

ignition switch cases with Mr. Hilliard [Ms. Ward-Green’s counsel].” Id. at

49, 52–53. Finally, Dr. Baxley explained that he could not have testified to a

causal connection between the ignition switch and the non-deployment of

the air bags at the time of Ms. Ward-Green’s plea because GM “had claimed

for decades that if there was a power loss during a crash event, the air bags

would still deploy.    And it was found out after, as part of all the

investigations and congressional hearings that took place in early 2014, that

that simply was not true.” N.T., 8/26/15, at 59. Yet, when presented with

three similar crashes all identified in his January 2015 report (a 2005

Maryland case; a 2007 Wisconsin case, and a 2009 Pennsylvania case),

Dr. Baxley acknowledged that he provided expert reports for the Wisconsin

and Pennsylvania cases in April of 2014, after “GM admitted the defect

existed.” Id. at 66–68, 70 (referring to Commonwealth Exhibits 1, 2, and

3).   Dr. Baxley’s testimony suggests that he could have offered an expert

opinion regarding Ms. Ward-Green’s accident as early as April of 2014. This

was two months after Ms. Ward-Green received the recall notice, four

months before she hired an attorney, six months before her Settlement Fund

claim was deemed valid, and eleven months before she filed her PCRA

petition.

      According to Mrs. Ward-Green, she spoke to an attorney in August of

2014 because she “had received the recall in the mail;” she had “seen the


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commercial about the GM recall and the defective ignition switch;” and she

“had her heart surgery done in 2010.” N.T., 8/26/15, at 82. She further

testified that the commercials “were saying that those lawyers were going

against the GM company in pursuit of the ignition switch defect” because

“there were so many other accidents prior to [hers] that had undergone this

kind of conviction.” Id. at 82–83. Attorney Hilliard, who had worked with

Dr. Baxley in other GM ignition switch cases, began representing Ms. Ward-

Green in late October of 2014, and the investigation into the post-conviction

process began in November of 2014.      Id. at 53, 80, 83.   When asked by

defense counsel, “In August 2014, you knew there was a problem with your

car and in October, you knew that GM had accepted your car for settlement,

right?” Ms. Ward-Green responded, “Yes.” Id. at 83–84.

     Based on the foregoing testimonial evidence, we conclude that

Ms. Ward-Green has not offered a sufficient excuse as to why the facts upon

which her claim is based could not have been ascertained through the

exercise of due diligence and a PCRA petition filed within sixty days—at the

latest—of her receipt of the settlement fund notice in October of 2014.

Thus, we conclude Ms. Ward-Green failed to meet the initial jurisdictional

threshold by alleging and proving that there were facts unknown to her and

that she exercised due diligence in discovering those facts.     42 Pa.C.S.

§ 9545(b)(1)(ii); Brown, 111 A.3d at 176. Absent proper jurisdiction, the

Commonwealth is correct: the PCRA court lacked authority to address the


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substantive merits of Ms. Ward-Green’s petition and to grant her collateral

relief.     Commonwealth’s Brief at 29.      Accordingly, we reverse the PCRA

court’s August 26, 2015 order.

          Turning to the Commonwealth’s second issue, it argues that the PCRA

court erred in granting Ms. Ward-Green relief in the form of vacating her

guilty plea. Commonwealth’s Brief at 30. Having determined that the PCRA

court lacked jurisdiction to address Ms. Ward-Green’s petition, we need not

address this issue.

          Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




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