J-S13008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    SHAWN L. BURTON,

                             Appellant                No. 451 WDA 2018


            Appeal from the PCRA Order Entered February 22, 2018
              In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                           CP-02-CR-0004017-1993
                           CP-02-CR-0004276-1993


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

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 24, 2019

        Appellant, Shawn L. Burton, appeals from the post-conviction court’s

February 22, 2018 order denying his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm

in part, vacate in part, and remand for further proceedings consistent with

this decision.

        The procedural history of this case is lengthy and complex.         Our

Supreme Court summarized part of that history in a prior appeal in this case,

as follows:

             On March 9, 1993, at approximately 12:15 p.m., Officer
        Gary Fluman, a correctional officer at the Allegheny County Jail,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S13008-19


     received a report from an inmate that there was a problem on
     Range 17, in the East Block of the jail. After requesting backup,
     Officer Fluman approached Cell 17–S. A group of inmates was
     gathered outside the cell and advised Officer Fluman that
     someone was under the bed and would not come out. Initially,
     Officer Fluman could see only the mattress and bedding, but,
     when he entered the cell and removed the mattress and bedding,
     he observed that inmate Seth Floyd had a ligature consisting of a
     shoe lace and a piece of nylon cord tied around his neck; the other
     end of the ligature was tied to a chain that holds the bed to the
     wall. Officer Fluman could not detect a pulse, and another officer
     who had arrived on the scene radioed for a doctor. A third officer
     cut the ligature, and the doctor unsuccessfully attempted to revive
     Floyd. Following an autopsy, it was determined that Floyd died as
     a result of asphyxiation due to ligature strangulation, and the
     manner of death was listed as pending due to suspicious
     circumstances.

            During their investigation into Floyd’s death, correctional
     officers interviewed several inmates. One inmate reported that he
     was walking past Floyd’s cell on his way to lunch and observed …
     Burton and another individual, Melvin Goodwine, engaged in
     conversation with Floyd inside his cell. When confronted with this
     information, Goodwine admitted that he had been in Floyd’s cell
     for a short time. [Burton], however, denied being in the vicinity of
     Floyd’s cell around the time of Floyd’s death, and, in fact, denied
     ever being in Floyd’s cell. [Burton] later admitted that he was near
     Floyd’s cell at the time he died, but maintained that he had never
     been inside Floyd’s cell.

           Two other inmates reported that, a few minutes before Floyd
     was found dead, they observed [Burton] and Goodwine in Floyd’s
     cell, wrestling him onto his bunk and pinning him while he
     struggled to free himself. One of these two witnesses also stated
     that, shortly after he observed the physical altercation among
     [Burton], Goodwine, and Floyd, he saw [Burton] and Goodwine
     run down the stairs, away from the area of Floyd’s cell. Another
     witness reported that, a few days before Floyd’s death, he
     overheard a conversation between [Burton] and Goodwine in
     which [Burton] told Goodwine that they needed to “fix that guy
     from California.” Affidavit for Criminal Complaint against Shawn
     Burton, 3/19/93, at 2. The witness explained that it is common
     knowledge in prison that the term “fix” means kill. Id. Further, it
     was confirmed that Floyd originally was from California, having
     recently moved to the Pittsburgh area. Based on the above

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        evidence, [Burton] and Goodwine were charged with Floyd’s
        murder.

           [Burton] and Goodwine were tried jointly before the Honorable
        Donna Jo McDaniel. On September 28, 1993, [Burton] was
        convicted of first-degree murder1 and conspiracy,2 and Goodwine
        was convicted of conspiracy. [Burton] was sentenced to a
        mandatory term of life imprisonment; Goodwine was sentenced to
        5 to 10 years[’] imprisonment. [Burton] appealed his judgment of
        sentence, which was affirmed by the Superior Court.
        Commonwealth v. Burton, 455 Pa. Super. 691, 688 A.2d 1225
        (1996) (unpublished memorandum). This Court denied his
        petition for allowance of appeal on August 15, 1997.
        Commonwealth v. Burton, 549 Pa. 696, 700 A.2d 437 (1997).
           1   18 Pa.C.S. § 2502(a).
           2   18 Pa.C.S. § 903.

            On August 4, 1998, [Burton] filed his first pro se PCRA petition,
        asserting various claims of ineffective assistance of counsel. After
        a series of procedural irregularities not relevant herein, [Burton]
        filed an amended PCRA petition on October 5, 2005. The PCRA
        court dismissed [Burton’s] amended PCRA petition on December
        12, 2005, and the Superior Court ultimately affirmed the PCRA
        court’s dismissal on February 21, 2007. Commonwealth v.
        Burton, 924 A.2d 688 (Pa. Super. filed Feb. 21, 2007)
        (unpublished memorandum), appeal denied, 594 Pa. 702, 936
        A.2d 39 (2007).

           On May 30, 2013, [Burton] received a letter from Charlotte
        Whitmore, a staff attorney with the Pennsylvania Innocence
        Project. The letter, dated May 23, 2013, included a copy of a pro
        se “Motion for Partial Expunction of Adult Criminal Record”
        (hereinafter “Motion to Expunge”) filed by Goodwine on July 29,
        2009. In the Motion to Expunge, Goodwine asserted that he
        murdered Floyd “in self defense,” but was “advised not to use this
        defense at trial.” Motion to Expunge, at 2 ¶ 4.[1] Goodwine further
____________________________________________


1   More specifically, Goodwine stated, in pertinent part:

        A requirement of the Pennsylvania Parole Board[] is to accept and
        own full responsibility for your crime. … Petitioner committed this
        act in self[-]defense. However, I was advised not to use this



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       averred in the motion that “an innocent man went to jail for a
       crime that [Goodwine] committed.” Id. [at] ¶ 5. According to
       Attorney Whitmore, she received copies of the Motion to Expunge
       and the trial court’s subsequent opinion denying the motion from
       Twyla Bivins, who claimed to have received the documents from
       Goodwine’s ex-girlfriend. In her letter to [Burton], Attorney
       Whitmore explained that the Innocence Project had not yet
       determined whether it would become involved in [Burton’s] case,
       but advised him that, if he was not previously aware of the
       averments made by Goodwine in his Motion to Expunge, [Burton]
       had 60 days to file a PCRA petition based on this “new evidence.”
       Letter to Shawn Burton from Charlotte Whitmore, 5/23/13, at 1.

          On July 11, 2013, [Burton] filed pro se a second PCRA petition
       asserting, inter alia, that Goodwine’s Motion to Expunge and the
       statements contained therein constituted newly-discovered
       exculpatory evidence that was unavailable at the time of his trial
       and which would have changed the outcome of his trial if the
       evidence had been introduced, citing, inter alia, this Court’s
       decision in Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
       1264 (2007), and referencing the exception to the PCRA’s time
       limitations set forth at 42 Pa.C.S. § 9545(b)(1)(ii). On August 6,
       2013, the PCRA court issued notice of its intention to dismiss
       [Burton]’s petition without a hearing pursuant to Pa.R.Crim.P. 907
       on the grounds that it was untimely; that [Burton] failed to aver
       any exceptions to the PCRA’s time requirements; that the petition
       was patently frivolous and without support on the record; that
       there were no genuine issues concerning any material fact; and
       that no purpose would be served by an evidentiary hearing. On
       August 21, 2013, [Burton] filed a response to the PCRA court’s
       Rule 907 notice, and six days later, the PCRA court dismissed
       [Burton’s] PCRA petition as “patently frivolous and without
       support on the record.” PCRA Court Order, 8/27/2013.


____________________________________________


       defense at trial. … [P]etitioner has already admitted to the Parole
       Board that I committed this act on my own in self[-] defense.
       Petitioner also admitted and take [sic] full responsibility and
       ownership that an innocent man went to jail for a crime that I
       committed.
Motion to Expunge at 8 ¶¶ 4, 5 (attached to Burton’s pro se PCRA petition filed
on July 11, 2013 as “Exhibit 2”).


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         [Burton] filed a timely appeal to the Superior Court, and
     complied with the PCRA court’s instruction to file a statement of
     matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).
     In his 1925(b) statement, [Burton] claimed, inter alia, that he
     qualified for an exception to the PCRA’s time limitations pursuant
     to 42 Pa.C.S. § 9545(b)(1)(ii), which provides that, where “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,” a petition may be filed within 60 days of the date
     the claim could have been presented. 42 Pa.C.S. § 9545(b)(1)(ii).
     In its Rule 1925(a) opinion in support of its dismissal of [Burton]’s
     petition, the PCRA court held that, “because [Burton’s] Petition
     was untimely filed and ... he failed to properly aver any exceptions
     to the time-limitation provisions” of the PCRA, the court did not
     have jurisdiction to address the petition. Commonwealth v.
     Burton, 2013 WL 10257583, at *1 (Pa. Common Pleas Allegheny
     Cty. filed Nov. 4, 2013).

         In July 2014, in an unpublished memorandum opinion, a
     divided panel of the Superior Court vacated the PCRA court’s order
     and remanded for an evidentiary hearing. The Commonwealth
     filed a timely application for reargument en banc, which the
     Superior Court granted, and the Superior Court withdrew its panel
     decision.

        On August 25, 2015, in a published opinion authored by
     President Judge Emeritus John Bender, the en banc Superior Court
     vacated the PCRA court’s order dismissing [Burton]’s second PCRA
     petition,   and  remanded      for   an    evidentiary   hearing.
     Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015)
     (en banc) [(Burton I)].

Commonwealth v. Burton, 158 A.3d 618, 620–23 (Pa. 2017) (Burton II)

(some footnotes omitted).

     Briefly, the en banc panel of this Court in Burton I rejected the notion

that because Goodwine’s motion to expunge was a public record, we were

constrained, under our Supreme Court precedent, to presume that it could not

be considered “unknown” by Burton. See Burton I, 121 A.3d at 1071-72.

Instead, we opined that such a presumption cannot be reasonably applied to


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pro se, incarcerated petitioners. Id. at 1072-73. Accordingly, the Burton I

majority held that “the presumption of access to information available in the

public domain does not apply where the untimely PCRA petitioner is pro se.”

Id. at 1073. Applying that law to Burton’s case, the Burton I panel concluded

that “without the benefit of an evidentiary record developed below, [Burton’s]

diligence may be sufficient,” and that he had “raise[d] genuine issues of

material fact that warrant development.” Id. Consequently, we vacated the

PCRA court’s order denying Burton’s petition and remanded for an evidentiary

hearing. Id.

       The Commonwealth filed a timely petition for allowance of appeal from

our decision in Burton I. On March 28, 2017, our Supreme Court affirmed in

Burton II. Thus, Burton’s case was remanded for an evidentiary hearing to

ascertain, without application of the public-record presumption, whether

Goodwine’s statement in his motion to expunge was unknown to Burton, and

whether he exercised due diligence in discovering it.

       Judge McDaniel again presided over the PCRA proceedings on remand.

Before she conducted an evidentiary hearing on Burton’s claim involving

Goodwine, Burton (who had retained Craig Cooley, Esq., to represent him)

filed a “Supplemental Amended PCRA Petition” on September 18, 2017.2

____________________________________________


2 Additionally, Burton also filed an “Amended Second PCRA Petition in the
Alternative Petitioner’s Third PCRA Petition” on May 26, 2017, in which he
alleged newly-discovered evidence of a recantation by Marvin Harper, an
inmate who had testified against Burton at trial. However, while Harper had



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J-S13008-19



Therein, Burton raised a newly-discovered evidence claim based on an

interview that Burton’s counsel and an investigator with the Pennsylvania

Innocence Project, Zach Stern, had conducted with Brian O’Toole on July 20,

2017. O’Toole was an inmate who had testified against Burton at trial, and

he allegedly recanted that trial testimony in the interview with Attorney Cooley

and Stern.

        Judge McDaniel accepted Burton’s supplemental petition and ultimately

conducted a separate evidentiary hearing on February 14, 2018 on Burton’s

claim involving O’Toole, which we discuss further infra. First, however, Judge

McDaniel held an evidentiary hearing on October 5, 2017, to address Burton’s

claims premised on Goodwine’s confession in his motion to expunge.

        At that proceeding, Judge McDaniel initially heard evidence regarding

how Burton had discovered Goodwine’s expungement motion.               She then

concluded that Burton had not previously known that information, and that he

had acted with due diligence in discovering it, thereby satisfying the timeliness

exception of 42 Pa.C.S. § 9545(b)(1)(ii). See N.T. PCRA Hearing, 10/5/17,

at 48.3


____________________________________________


provided Burton with an affidavit stating his recantation, Harper subsequently
refused to talk to Attorney Cooley to verify the facts in the affidavit. See
Burton’s Brief at 25. Accordingly, Attorney Cooley did not subpoena Harper
to testify on Burton’s behalf at the PCRA hearing conducted on remand. On
appeal, he raises no challenge to the PCRA court’s dismissal of his newly-
discovered evidence claim based on Harper’s recantation. See id.

3   The Commonwealth does not challenge this determination on appeal.

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     Judge McDaniel then turned to the merits of the substantive, newly-

discovered evidence claim. In this regard, Attorney Cooley first explained to

the court that he wished to call Goodwine, who was present at the proceeding,

to the stand to testify, but that he was informed Goodwine intended to invoke

his Fifth Amendment right not to testify. N.T. PCRA Hearing, 10/5/17, at 29.

Goodwine’s counsel, who had been appointed by Judge McDaniel, confirmed

that Goodwine intended to exercise his “right to remain silent because his

answers may tend to incriminate him.” Id. at 30. When the Commonwealth

pressed counsel “as to what crime” Goodwine was claiming his testimony

might implicate him, his counsel stated: “Perjury, unsworn falsification to

authorities, and homicide in the federal courts.” Id. Thereafter, Goodwine

took the stand and stated the following as to each question posed about his

motion to expunge: “On the advice of my counsel, I exercise my Fifth

Amendment right to remain silent because my answers may tend to

incriminate me.”   Id. at 32-34.     The PCRA court accepted Goodwine’s

invocation and excused him from the proceeding. Id. at 34, 35.

     Attorney Cooley then admitted Goodwine’s expungement motion

without objection by the Commonwealth.      Id. at 35.   The parties offered

argument concerning, inter alia, whether that document would be admissible

as substantive evidence if Burton were afforded a new trial and Goodwine

again refused to testify.   Attorney Cooley’s position was that Goodwine’s

statements in that document would be admissible as substantive evidence

under the ‘statement against interest’ exception to the rule against hearsay.

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J-S13008-19



See Pa.R.E. 804(b)(3); see also N.T. PCRA Hearing, 10/5/17, at 43-46. The

Commonwealth did not offer a rebuttal argument.

      Ultimately, at the close of the hearing, Judge McDaniel denied Burton’s

newly-discovered evidence claim, explaining her decision, in pertinent part,

as follows:

      [The Court]: … [T]here was a prior hearing[,] and I do not have
      the day for it[,] where [] Goodwine did testify. I found him not to
      be credible. This seems to be, to me at the time, a manufactured
      scheme since Goodwine was protected by the double jeopardy
      clause and what did he have to lose. He had nothing to lose by
      coming in and helping out a fellow inmate or friend o[r] whatever
      kind of coconspirator, what kind of relationship they had.

            That being said, I have already found [] Goodwine to be
      incredible at a prior hearing. He refused to testify today. And I
      feel that both of these outweigh a typewritten motion for
      expungement and, therefore, the PCRA [petition] as to this issue
      is denied.

Id. at 48-49.

      Judge McDaniel then scheduled a second evidentiary hearing to address

Appellant’s supplemental PCRA petition raising the O’Toole claim. However,

prior to that hearing, scheduled for February 14, 2018, O’Toole (who is serving

a sentence of life without parole) sent a letter to Judge McDaniel indicating

that he would refuse to testify at the hearing, that it would be a “waste of

time” to transport him to the proceeding, and that his life would be placed in

danger if forced to attend. See Burton’s Brief at 23. O’Toole also sent a letter

to Attorney Cooley indicating that he would not cooperate with the defense.

Id. at 22. Judge McDaniel informed counsel of O’Toole’s letter and expressed

that she planned to cancel the order to transport O’Toole to the hearing.

                                     -9-
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However, Judge McDaniel allowed Attorney Cooley to submit objections to the

cancelation, which counsel claims to have sent to Judge McDaniel on February

6, 2018. Id. at 24.

       At some point before the February 14, 2018 proceeding, Judge McDaniel

directed that O’Toole’s transportation order be canceled.4 Accordingly, he was

not in attendance at the February 14th hearing. However, his court-appointed

counsel, Phillip C. Hong-Barco, Esq., was present, and verified that O’Toole

would have refused to testify had he been transported to the hearing:

       [Attorney Hong-Barco:] I did speak with Mr. O’Toole - who is
       incarcerated at SCI Fayette - over the phone last week. He did
       reiterate exactly to me what is in his letter, that in no way, shape
       or form is he going to be cooperating or answering any questions
       related to this case.

          I have received and reviewed, obviously, some of the pleadings
       in Your Honor’s letter, and I was made aware that Your Honor did
       cancel the transportation order. Other than that, he really doesn’t
       have anything else to say.

N.T. PCRA Hearing, 2/14/18, at 5-6. While O’Toole was not present to testify

at the hearing, Attorney Cooley was permitted to admit the substance of

O’Toole’s recantation through the testimony of Zach Stern, who explained

what O’Toole had said during the July 20, 2017 interview. Id. at 20-26.

       On February 22, 2018, Judge McDaniel entered an order denying

Burton’s petition, and stating that “[a] new trial will not take place.” Order,

2/22/18. Burton filed a timely notice of appeal, and he also timely complied

____________________________________________


4No order canceling O’Toole’s transportation order is contained in the certified
record, but no one disputes that the transportation order was canceled.

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Judge McDaniel’s order to file a Rule 1925(b) concise statement of errors

complained of on appeal. Judge McDaniel issued her Rule 1925(a) opinion on

July 16, 2018. Herein, Burton states two issues for our review:
      [I.] Judge McDaniel erred and violated [] Burton’s state and
      federal due process rights by rejecting [] Burton’s newly-
      discovered fact claim regarding the incriminating statements his
      co-defendant, Melvin Goodwine, made in his July 2009
      expungement motion. U.S. Const. admts. 5, 6, 8, 14; Pa. Const.
      art. I, §§ 8, 9.

      [II.] Judge McDaniel erred and violated [] Burton’s due process
      rights by striking the transportation order relating to Brien [sic]
      O’Toole’s appearance at the February 14, 2018 PCRA hearing.
      U.S. Const. admts. 5, 6, 8, 14; Pa. Const. art. I, §§ 8, 9.

Burton’s Brief at 1-2.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

                                    Timeliness

      We must begin by addressing the timeliness of Burton’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or subsequent

one, must be filed within one year of the date the judgment of sentence

becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) applies:


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       (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition alleges
          and the petitioner proves that:

              (i) the failure to raise the claim previously was      the
              result of interference by government officials with    the
              presentation of the claim in violation of              the
              Constitution or laws of this Commonwealth or           the
              Constitution or laws of the United States;

              (ii) the facts upon which the claim is predicated were
              unknown to the petitioner and could not have been
              ascertained by the exercise of due diligence; or

              (iii) the right asserted is a constitutional right that was
              recognized by the Supreme Court of the United States
              or the Supreme Court of Pennsylvania after the time
              period provided in this section and has been held by
              that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).5

       Here, in regard to Burton’s claim premised on Goodwine’s confession in

his expungement motion, Judge McDaniel concluded that Burton satisfied the

newly-discovered fact exception. The Commonwealth does not challenge that

decision on appeal, and we discern no error in the court’s ruling.



____________________________________________


5An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).

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      Pertaining to Burton’s claim premised on O’Toole’s recantation, his issue

on   appeal    solely   involves   Judge   McDaniel’s   cancelation   of   O’Toole’s

transportation order. In other words, we are not asked to evaluate the merits

of Burton’s underlying, newly-discovered evidence claim but, instead, to

examine whether Judge McDaniel abused her discretion procedurally. Judge

McDaniel did not discuss the timeliness of Burton’s O’Toole issue, and the

Commonwealth does not contend that the untimeliness of Burton’s petition

bars our review of the specific claim he presents herein. We conclude that

because Burton filed a timely appeal, we possess jurisdiction to examine Judge

McDaniel’s procedural decision to cancel O’Toole’s transportation order. For

ease of disposition, we will begin by reviewing this claim.

                                   O’Toole Claim

      Burton argues that Judge McDaniel abused her discretion by canceling

the transportation order for O’Toole to be brought to the hearing on February

14, 2018. Before we review the merits of his argument, we must address

Judge McDaniel’s conclusion that Burton waived this issue by failing “to

provide the complete record necessary for an evaluation of this claim, namely

the transcript of the February 14, 2018 evidentiary hearing.”          PCRA Court

Opinion (PCO), 7/16/18, at 10. In support of finding waiver, Judge McDaniel

relied on Pa.R.A.P. 1911, which states, in pertinent part:
      (a)     General rule. The appellant shall request any transcript
              required under this chapter in the manner and make any
              necessary payment or deposit therefor in the amount and
              within the time prescribed by Rules 4001 et seq. of the
              Pennsylvania Rules of Judicial Administration.

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J-S13008-19



                                     ***

      (d) Effect of failure to comply. If the appellant fails to take the
      action required by these rules and the Pennsylvania Rules of
      Judicial Administration for the preparation of the transcript, the
      appellate court may take such action as it deems appropriate,
      which may include dismissal of the appeal.

Pa.R.A.P. 1911.

      In Burton’s brief, Attorney Cooley offers a detailed discussion of his

efforts to obtain the transcript of the February 14, 2018 hearing, ultimately

arguing that the omission of the transcript from the record before Judge

McDaniel was the fault of the Allegheny County Court Reporter’s Office (CRO).

See Burton’s Brief at 30-32. However, we need not address Attorney Cooley’s

argument in this regard, as we conclude the circumstances of this case do not

warrant waiver of Burton’s O’Toole claim. Clearly, Judge McDaniel canceled

O’Toole’s transportation order after she received his letter on February 1,

2018, and before the February 14, 2018 hearing. Thus, we fail to see why

Judge McDaniel could not explain her rationale for canceling the transportation

order simply because she did not possess the transcript of a hearing that

occurred after that decision was made.

      In any event, the transcript of the February 14, 2018 hearing is

contained in the certified record before this Court, and Judge McDaniel clearly

stated her reasons for canceling the transportation order during that

proceeding. See N.T. PCRA Hearing, 2/14/18, at 4-5. Thus, our review of

Judge McDaniel’s decision is not in any way impeded by the fact that she did



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not have the at-issue transcript in drafting her opinion. We will not deem this

issue waived.

       Burton claims that Judge McDaniel abused her discretion in canceling

O’Toole’s transportation order for several reasons.6 Initially, we restate the

well-settled principle that “[a]n abuse of discretion is more than just an error

in judgment and, on appeal, the trial court will not be found to have abused

its discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.”

Walsh, 36 A.3d at 620 (citation omitted).

       Burton first claims that Judge McDaniel abused her discretion because

her decision to cancel the transportation order was premised on a letter that

was never properly authenticated. He also contends that O’Toole’s reasons

for refusing to testify were vague and inadequate to support Judge McDaniel’s

essentially quashing his subpoena.             Additionally, Burton insists that Judge


____________________________________________


6  The parties agree that Burton’s claim is akin to a challenge to a court’s
decision to quash a subpoena, which we review under an abuse-of-discretion
standard. See Commonwealth’s Brief at 49 (arguing that this issue is
“analogous to either the decision to deny a transport order or the decision to
quash a subpoena” and that “[i]n both instances, the appellate standard for
reviewing such decisions is whether the court abused its discretion”) (citing
Commonwealth v. Banks, 946 A.2d 721, 723 (Pa. Super. 2008) (stating
that a “trial court’s ruling on transporting witnesses is abuse of discretion”);
Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012) (“Whether a
subpoena shall be enforced rests in the judicial discretion of the court.”)); see
also Burton’s Brief at 74 (“Whether a subpoena shall be enforced rests in the
trial court’s discretion.”) (citing Branham v. Rohm & Haas Co., 19 A.3d
1094, 1103 (Pa. Super. 2011)). We accept this position by the parties.


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McDaniel erred because her “primary finding for canceling O’Toole’s

transportation order was her finding that O’Toole ‘is totally, 100 percent,

absolutely incredible.’”   Burton’s Brief at 75 (quoting N.T. PCRA Hearing,

2/14/18, at 10-11). According to Burton, that credibility determination is not

supported by the record. In sum, Burton contends that he is entitled to an

evidentiary hearing at which he can “confront O’Toole and question him under

oath regarding the truthfulness of his trial testimony and July 20, 2017

statement” to Attorney Cooley and Zach Stern. Id. at 76.

      Having carefully considered the record in this case and Burton’s

arguments, we conclude that no relief is due.        Burton asks this Court to

remand his case for a new PCRA hearing at which O’Toole will be subpoenaed

to testify. See id. at 77. However, O’Toole has clearly expressed that he will

not cooperate or testify on Burton’s behalf. O’Toole’s refusal to testify was

not solely conveyed in his letter to Judge McDaniel that Burton challenges as

not properly authenticated.     On the contrary, O’Toole also sent Attorney

Cooley a letter stating that he would not cooperate with the defense, and at

the PCRA hearing, O’Toole’s court-appointed counsel confirmed that O’Toole

told counsel he will “in no way, shape or form … be cooperating or answering

any questions related to this case” if he is called to testify. N.T. PCRA Hearing,

2/14/18, at 5.   Additionally, Zach Stern testified at the PCRA hearing that

O’Toole told him at the July 20, 2017 interview that he did “not want to testify

at the hearing.” Id. at 25. Accordingly, nothing in the record suggests that




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O’Toole will cooperate and testify on Burton’s behalf, were we to order a new

hearing on this claim.

      Further, we discern no meaningful way that the PCRA court could compel

O’Toole to testify. As Judge McDaniel noted, O’Toole is serving a sentence of

life incarceration and, therefore, the threat of holding him in contempt of court

and additional jail time would not likely induce his cooperation. See id. at 5.

The Commonwealth also noted that O’Toole would “theoretically have a Fifth

Amendment right not to testify … because [the Commonwealth] could charge

him with perjury, because he is changing his testimony.” Id. at 6. Burton

offers no response to this argument.

      Based on this record, it is reasonable to presume that O’Toole would not

testify at a new evidentiary hearing. Thus, Burton would only be able to offer

the very same evidence introduced when O’Toole was not present at the

hearing on February 14, 2018 – namely, the testimony of Zach Stern. Again,

Stern was permitted to testify about the content of O’Toole’s interview on July

20, 2017. See id. at 21-23. Thus, Judge McDaniel considered the substance

of O’Toole’s recantation and concluded that it did not warrant a new trial.

Curiously, Burton does not present any meaningful argument that Judge

McDaniel erred in this regard because O’Toole’s statements from the interview

are sufficient to warrant a new trial.   Instead, he focuses solely on Judge

McDaniel’s decision to cancel O’Toole’s transportation order, contending that

he is entitled to a new evidentiary hearing. However, for the reasons stated




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supra, Burton has failed to establish that the outcome of that proceeding

would be different. Accordingly, he is not entitled to relief.

                                  Goodwine Claim

      Next, we address Burton’s argument that Judge McDaniel erred by

denying him a new trial based on the newly-discovered evidence of

Goodwine’s confession in his expungement motion. Before delving into the

specifics of Burton’s argument, we initially observe that:

      The four-prong test for awarding a new trial because of after-
      discovered evidence is well settled. The evidence: (1) could not
      have been obtained prior to trial by exercising reasonable
      diligence; (2) is not merely corroborative or cumulative; (3) will
      not be used solely to impeach a witness’s credibility; and (4)
      would likely result in a different verdict. See Commonwealth v.
      Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008) (citations omitted).

Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). Pertinent to

our present discussion, this Court has stated that in determining “whether the

alleged after-discovered evidence is of such nature and character that it would

likely compel a different verdict if a new trial is granted[,] … a court should

consider the integrity of the alleged after-discovered evidence, the motive of

those offering the evidence, and the overall strength of the evidence

supporting the conviction.” Commonwealth v. Padillas, 997 A.2d 356, 365

(Pa. Super. 2010) (cleaned up). Finally, “the proposed new evidence must be

producible and admissible.” Castro, 93 A.3d at 825 (cleaned up).

      In this case, Judge McDaniel concluded that Burton exercised due

diligence in discovering Goodwine’s expungement motion. See PCO at 4. She

made no express ruling on the second and third prongs of the above-stated

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test. Instead, she proceeded directly to the fourth prong, rejecting Burton’s

after-discovered evidence claim because she found Goodwine’s confession

wholly incredible.

      Burton challenges that decision, contending that Judge McDaniel’s

credibility determination regarding Goodwine was premised on factors not

supported by the record. Judge McDaniel expressed four reasons for finding

Goodwine’s confession incredible: (1) she had found Goodwine’s testimony

incredible at a “prior hearing,” see N.T. PCRA Hearing, 10/5/17, at 48; PCO

at 7-8; (2) Goodwine “refused to testify” at the PCRA hearing, N.T. PCRA

Hearing, 10/5/17, at 49; PCO at 7-8 ; (3) Goodwine “was protected by the

prohibition against double jeopardy” and, thus, he “likely felt he had nothing

to lose by adding a confession to his expungement petition,” PCO at 8; and

(4) the “inescapable conclusion … was that [Goodwine’s confession] was a

concocted scheme” between Burton and Goodwine, id. We will address each

of these factors in turn.

      First, Burton stresses that Judge McDaniel could not recall the date of

the ‘prior hearing’ at which she found Goodwine incredible, and she did not

offer any details regarding the context or content of Goodwine’s alleged

testimony at that unspecified proceeding. Burton claims that he

      has searched in vain for any record of this prior hearing where
      Goodwine testified but has found no documentation ordering a
      hearing or when the hearing occurred. Indeed, Goodwine’s
      Common Pleas Court docket sheet and case file does not list a
      hearing in connection with his expungement motion, nor does the
      docket sheet list an entry of a transportation order requiring
      Goodwine’s attendance at [any] hearing.

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Burton’s Brief at 52.       In any event, even if such a record exists, Burton

stresses that Judge McDaniel did not incorporate it into the record of this case

and, therefore, it was impermissible for her to rely on it in making her

credibility determination.

        We agree.     As Burton observes, this Court cannot review, let alone

accept, a credibility determination premised on a record that is not before us.

Because Judge McDaniel did not incorporate Goodwine’s alleged testimony at

the unidentified ‘prior hearing’ at which she deemed him incredible into the

record of the present case, it is obvious that it cannot support her decision

that Goodwine’s confession in the expungement motion was not believable.

        Next, Judge McDaniel offers no explanation for why, in her view,

Goodwine’s invocation of his Fifth Amendment right not to incriminate himself

- which Judge McDaniel accepted as valid - casts doubt on the credibility of

his confession.7     Additionally, we agree with Burton that the record lacks

support for Judge McDaniel’s conclusion that Goodwine “likely felt he had

nothing to lose by adding a confession to his expungement petition….” PCO

at 8.    As Burton avers, “Judge McDaniel’s decision at the … hearing to




____________________________________________


7We point out that neither party challenges Judge McDaniel’s acceptance of
Goodwine’s invocation.




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recognize the legitimacy of Goodwine’s right to remain silent destroys this

finding.” Burton’s Brief at 48. We agree.8

       Finally, Burton argues that there is no support for Judge McDaniel’s

finding that Goodwine and Burton concocted a plan for Goodwine to confess

in the expungement motion. Again, we agree. Not only was there no evidence

____________________________________________


8 Although Judge McDaniel did not premise her credibility determination on a
conclusion that Goodwine’s confession was fabricated solely to obtain parole,
the Commonwealth presents this argument on appeal. In particular, the
Commonwealth maintains that, because Goodwine stated in his motion to
expunge that he was required to take “full responsibility” for his crime to be
paroled, it is apparent that Goodwine confessed “to curry favor with the parole
board by making a claim that he thought would most likely result in being
paroled….” Commonwealth’s Brief at 32, 33. However, Burton responds:
             [I]f Goodwine falsely accepted sole responsibility for Seth
       Floyd’s murder simply to obtain parole, why would he give an
       account of Floyd’s murder that differed so dramatically from the
       narrative at trial that supported his conspiracy conviction? His
       conspiracy conviction, for instance, requires the existence of at
       least two people “conspiring” with one another to murder Floyd.
       The Commonwealth’s narrative at trial was that Goodwine and []
       Burton had murdered Floyd.

              If Goodwine wanted to impress upon the parole board that
       he was truly “remorseful” for what he had done and was taking
       “full responsibility” for his part in Floyd’s murder, why didn’t he
       simply explain how he had “conspired” with [] Burton to “murder”
       Seth Floyd? In other words, it would have been far easier to
       obtain parole had Goodwine simply confessed to the narrative
       presented at trial, i.e., he and [] Burton conspired to murder Floyd
       and that they both had participated in the murder. By removing
       [] Burton entirely from the narrative, Goodwine ran the risk of
       having the parole board not believe his account, which in turn
       decreased the likelihood of being paroled in the first place.
Burton’s Brief at 49 (emphasis in original). Burton’s argument is a convincing
counter to the Commonwealth’s position.



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presented to back this theory but, as the Commonwealth even concedes, it is

wholly illogical to conclude that the two men planned Goodwine’s 2009

confession, but Burton then waited until 2013 to raise it in his PCRA petition.

See Commonwealth’s Brief at 33 n.18.               Moreover, Judge McDaniel found

credible evidence that Burton first discovered Goodwine’s expungement

motion when the Pennsylvania Innocence Project mailed him a copy of it. See

N.T. PCRA Hearing, 10/5/17, at 47. Had he and Goodwine concocted the plan

for Goodwine to confess in 2009, Burton insists he “would not have waited

around hoping someone would send him the expungement motion.” Burton’s

Brief at 47. Additionally, if Goodwine confessed solely to help Burton, why

would he not have sent that confession to Burton (or at least notified him of

its existence)?      In light of this record, we agree with Burton, and the

Commonwealth, that Judge McDaniel’s conclusion that Goodwine and Burton

‘concocted’ Goodwine’s confession is not supported by the record, nor by logic.

       In sum, there was no evidence presented at the PCRA hearing on

October 5, 2017, to support Judge McDaniel’s reasons for finding Goodwine’s

confession incredible. As her decision to deny his petition was premised on

this credibility determination, we must vacate Judge McDaniel’s order denying

Burton’s petition and remand for further proceedings.9




____________________________________________


9As Burton observes, on remand, his “case will be assigned to a new judge
because Judge McDaniel resigned on December 12, 2018….” Burton’s Brief at
32 (citation omitted).

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      Before concluding, we recognize that remanding would be unnecessary

if we accepted either of the Commonwealth’s arguments that Goodwine’s

confession in the expungement motion is hearsay that would not be admissible

as substantive evidence at a new trial, or that the confession would not likely

result in a new verdict, even if admitted. See Commonwealth’s Brief at 27-

38. Burton offers strong counter-arguments to both of the Commonwealth’s

claims. See Burton’s Brief at 42-44; 50-65. Notably, neither of these issues

were addressed by Judge McDaniel below, and each potentially involves

factual findings and/or credibility determinations that must be made by the

PCRA court in the first instance. See Pa.R.E. 804(b)(3)(B) (requiring that, to

be admissible under this exception, the hearsay statement “is supported by

corroborating circumstances that clearly indicate its trustworthiness, if it is

offered in a criminal case as one that tends to expose the declarant to criminal

liability”); see Padillas,     997 A.2d at 365 (discussing the factual

considerations a trial court should assess in determining if the new evidence

would likely compel a different verdict).

      Therefore, we vacate the PCRA court’s order to the extent it denied

Burton’s after-discovered evidence claim premised on Goodwine’s confession

in his motion to expunge, and we remand for further proceedings regarding




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that claim.10 On remand, the PCRA court must make credibility determinations

regarding Goodwine’s confession that are supported by the record before it.

If the court finds Goodwine’s confession credible, it must then assess whether

his statements in the motion to expunge would be admissible as substantive

evidence, and whether that evidence would likely result in a different verdict

if a new trial were granted. To the extent Judge McDaniel denied Burton’s

O’Toole claim, we affirm.

       Order affirmed in part, vacated in part.    Case remanded for further

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019

____________________________________________


10 We note that Burton claims, for the first time on appeal, that on October
19, 2017 (after Judge McDaniel denied his Goodwine-related claim), he
received from the Pennsylvania Board of Probation and Parole documents from
Goodwine’s parole file, which included a second, hand-written confession to
the murder by Goodwine. See Burton’s Brief at 19. Specifically, Goodwine
allegedly stated, in pertinent part: “I went to Mr. Floyd’s cell to fight[.] The
fight was getting out of control. And in the middle of our struggle I strangled
Mr. Floyds [sic] to death with a shoestring I had wrapped around my hand
during the fight.” Id. at 20. Goodwine does not mention Burton anywhere in
that confession. Again, Judge McDaniel was not presented with this evidence
in ruling on Burton’s petition below. We leave it to the discretion of the PCRA
court whether it will permit Burton to present this evidence to supplement his
Goodwine claim on remand.

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