J-S35035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                  v.                           :
                                               :
                                               :
    ANDREW POOLE,                              :
                                               :
                       Appellant               :   No. 1711 EDA 2019

               Appeal from the PCRA Order Entered May 22, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002735-2008


BEFORE:      BOWES, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 Filed: August 27, 2020

        Appellant, Andrew Poole, appeals from the order entered May 22, 2019,

that denied his first petition filed under the Post Conviction Relief Act

(“PCRA”).1 We affirm on the basis of the PCRA court opinion.

        We previously set forth the factual background pertinent to this

        matter:

           On September 24, 2007, at approximately 3:00 p.m., a
           gunman with a bandana covering his face opened fire at the
           Tustin Recreation Center playground in the city of
           Philadelphia.   Carl Wallace sustained multiple gunshot
           wounds but survived. Mehkee Gatewood, who was only 18
           months old at the time of the shooting, was also struck in
           the foot and arm. Although no one was able to positively
           identify the gunman, he was seen running from the direction
           of the playground after the shooting. Appellant came to

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541–9546.
J-S35035-20


        believe that Tremayne Walker (“Walker”) had told police
        that he was involved.

        On November 11, 2007, not far from the Tustin playground
        at the corner of 61st and Oxford streets, Walker was shot to
        death. Before he died, Walker told multiple eyewitnesses,
        including Officer Robert Saccone, Alice Holmes (“Holmes” ),
        and his friend Terrell Watson (“Watson”), that it was
        [Appellant] who had shot him. [The victim] told Holmes, “If
        I die, Andrew Poole shot me.” When Officer Saccone, who
        was only two blocks away at the time of the shooting and
        arrived immediately thereafter, asked Walker who shot him,
        Walker replied, “Drew Poole got me.” Walker died from
        injuries sustained from three gunshot wounds.

        ...

        On December 10, 2008, [Appellant] was found guilty of
        murder in the first degree for the shooting death of Walker,
        possessing an instrument of crime (“PIC”), firearms not to
        be carried without a license, and intimidation of a witness
        or victim. The jury was unable to reach a verdict on the
        charges related to the September 24, 2007 playground
        shooting.

        On June 18, 2009, [Appellant] was sentenced to life
        imprisonment for first-degree murder, followed by 10 to 20
        years for witness intimidation. Appellant’s sentences on the
        remaining convictions were run concurrently.

     Commonwealth v. Poole, 30 A.3d 527 (Pa.Super. 2011)
     (unpublished memorandum at *1-4). Appellant’s conviction was
     largely based on testimony provided by Watson at the preliminary
     hearing, which stated that Walker had identified Appellant as his
     assailant immediately prior to his death. Watson’s testimony
     during the preliminary hearing was read into the record at trial
     when Watson failed to appear to testify, and the Commonwealth
     could not locate him . . .

     Appellant appealed his judgment of sentence, and we affirmed.
     Poole, supra. On March 1, 2012, the Supreme Court denied
     Appellant’s petition for allowance of appeal. Commonwealth v.
     Poole, 40 A.3d 1235 (Pa. 2012).          On February 14, 2016,
     Appellant filed a counseled PCRA petition alleging that he received
     an affidavit from Watson in which Watson recanted his testimony
     indicating that Walker had identified Appellant as his shooter on

                                    -2-
J-S35035-20


      the night in question. Watson also averred that Officer Saccone
      coerced him to falsely identify Appellant as the shooter. Appellant
      appended Watson’s affidavit to the PCRA petition and argued that
      his petition was timely filed pursuant to the newly-discovered fact
      and governmental interference exceptions to the PCRA’s statutory
      time bar.

      On August 16, 2016, the Commonwealth filed a motion to dismiss
      Appellant’s PCRA petition, arguing that Appellant’s petition was
      untimely, and that he failed to establish any of the exceptions to
      the PCRA’s statutory time bar. On November 29, 2016, the PCRA
      court filed Rule 907 notice of its intent to dismiss Appellant’s
      petition without a hearing, stating that Appellant’s petition was
      untimely, and his issues were without merit. On February 7, 2017,
      the PCRA court granted the Commonwealth’s motion to dismiss,
      and [a] timely appeal followed.

Commonwealth v. Poole, No. 760 EDA 2017, unpublished memorandum at

1-3 (Pa. Super. filed March 27, 2018).

      On appeal, this Court vacated the PCRA order and remanded for further

proceedings, id. at 1, explaining:

      A PCRA petition, including a subsequent or serial petition, must be
      filed within one year of the date that a defendant’s judgment of
      sentence became final, unless an exception to the one-year time
      restriction applies. 42 Pa.C.S. § 9545(b)(1). This time bar is
      jurisdictional in nature. Whether a petition is timely is a matter
      of law. Commonwealth v. Hudson, 156 A.3d 1194, 1197
      (Pa.Super. 2017).

      Appellant concedes that his petition is facially untimely. When a
      PCRA petition is facially untimely, the petitioner must plead and
      prove that one of the statutory exceptions applies. Id. If no
      exception applies, then the petition must be dismissed, as we
      cannot consider the merits of the appeal. Id. The PCRA reads, in
      relevant part:

         (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 of sentence


                                       -3-
J-S35035-20


           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 the government officials with the
                 presentation of the claim in violation of
                 the Constitution or law 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) . . .

     Appellant claims that the PCRA court erred in dismissing his
     petition since there remain genuine issues of material fact that, if
     true, would establish an exception to the PCRA’s time bar. In his
     petition, Appellant pled facts implicating the newly-discovered fact
     and governmental interference exceptions to the PCRA time bar.

     The newly-discovered fact exception, as set forth in
     § 9545(b)(1)(ii), requires a petitioner to plead and prove: (1) he
     did not know the fact(s) upon which he based his petition; and
     (2) he could not have learned those fact(s) earlier by the exercise
     of due diligence. Commonwealth v. Shiloh, 170 A.3d 553, 558
     (Pa.Super. 2017). Due diligence, in this context, obliges the
     petitioner “to take reasonable steps to protect [his] own
     interests.” Id. (citation omitted). Nevertheless, it does not
     demand “perfect vigilance nor punctilious care, but rather it
     requires reasonable efforts by a petitioner, based on the particular
     circumstances, to uncover facts that may support a claim for
     collateral relief.” Id. (citation omitted). As such, “the due
     diligence inquiry is fact-sensitive and dependent upon the
     circumstances presented,” and “[a] petitioner must explain why

                                     -4-
J-S35035-20


      she could not have learned the new fact earlier with the exercise
      of due diligence.” Id. (citation omitted). . . .

      Appellant also raises a claim that his petition satisfies the
      governmental interference exception to the PCRA’s time bar. . . .

      Appellant maintains that the Commonwealth’s knowing reliance
      on purportedly perjured testimony constitutes a Brady violation,1
      and that Officer Saccone’s actions can be imputed on the
      Commonwealth. . . .
         1   Brady v. Maryland, 373 U.S. 83 (1963).

      Our High Court has previously noted that the “proper questions”
      with regard to this exception “are whether the government
      interfered with Appellant’s ability to present his claim and whether
      Appellant was duly diligent in seeking the facts on which his claims
      are based.” Commonwealth v. Edmiston, 65 A.3d 339, 345
      (Pa. 2013); Commonwealth v. Hawkins, 953 A.2d 1248 (Pa.
      2006) (noting “although a Brady claim may fall within the
      governmental interference exception, the petitioner must plead
      and prove that the failure to previously raise these claims was the
      result of interference by governmental officials, and that the
      information could not have been obtained earlier with the exercise
      of due diligence.”). . . .

      [O]ur review of the record reveals there are genuine issues
      concerning material facts that remain unresolved. Thus, we find
      that the PCRA court erred in dismissing Appellant’s petition as
      untimely without first holding a hearing to determine whether
      Appellant satisfied an exception to the PCRA’s statutory time bar.
      We direct the PCRA court to hold such a hearing, and to determine
      whether Appellant has pled and proven such an exception.

Id. at 4-6, 11-12.

      On remand, the PCRA court held an evidentiary hearing. In its opinion,

the PCRA court fully and correctly set forth the testimony from the hearing.

See PCRA Court Opinion, dated July 9, 2019, at 5-8 Therefore, we have no

reason to restate it at length.




                                     -5-
J-S35035-20



      For the convenience of the readers, we briefly note that, on direct

examination, Watson testified that he had joined the Army and left

Philadelphia shortly after testifying at Appellant’s preliminary hearing and that

he had not kept in contact with Appellant, despite knowing Appellant for many

years and being good friends with him. PCRA Court Opinion, dated July 9,

2019, at 5 (citing N.T., 5/16/2019, at 9-11, 13, 16, 35). “Watson, who did

not appear at [A]ppellant’s trial despite being subpoenaed to do so, explained

that he did not appear because he knew he had testified falsely at [A]ppellant’s

preliminary hearing and did not want to commit perjury.” Id. (citing N.T.,

5/16/2019, at 9-10). However, “[o]n cross-examination, Watson stated that

he remained in Philadelphia for several months after testifying at [A]ppellant’s

preliminary hearing before joining the Army and believed he left joined the

Army in early 2009.”      Id. (citing N.T., 5/16/2019, at 23-24).    Appellant’s

sister, Viola Poole, also testified.

      She stated that she ran into “P” in early March of 2015, when in
      the “old neighborhood” who asked her about her brother because
      she, “P”, Watson, and appellant used to play basketball together.
      Ms. Poole asked “P” if he knew where Watson was and to give him
      her phone number. Watson thereafter called her and told her that
      the killing did not “go down like that” and that he was willing to
      speak to someone.

Id. at 7 (citing N.T., 5/16/2019, at 45-46).

      [A]t the conclusion of the hearing held on May 22, 2019, th[e
      PCRA c]ourt held that [A]ppellant had not exercised due diligence
      in filing his most recent PCRA petition and again dismissed the
      petition. Appellant thereafter filed a timely notice of appeal and a
      court-ordered 1925(b) Statement of Matters.

Id. at 2.

                                       -6-
J-S35035-20



      Appellant presents the following issues for our review:

      I.    Whether the PCRA [court] erred in finding that [Appellant]’s
      PCRA petition was untimely when the evidence established that
      (1) the facts upon which his petition was based were unknown to
      [Appellant] and (2) could not have been discovered earlier by the
      exercise of due diligence and the PCRA petition was filed within
      sixty (60) days of the date on which the claim could have been
      presented?

      [II.] Whether the PCRA [court] erred in finding the PCRA
      [petition] to be untimely when the evidence established that
      [Appellant] was entitled to the timeliness exception for
      governmental interference?

Appellant’s Brief at 1-2 (unnecessary capitalization omitted).

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

      As noted above, Appellant attempts to circumvent the time bar by

asserting the exceptions under subsection 9545(b)(1)(i) and (ii).       After a

thorough review of the record, the briefs of the parties, the applicable law,

and the well-reasoned opinion of the Honorable Jeffrey P. Minehart, we

conclude Appellant’s issues merit no relief.        The PCRA court opinion

comprehensively discusses and properly disposes of those questions.        See

PCRA Court Opinion, dated July 9, 2019, at 9–13 (finding: (I) a review of the

record belies Appellant’s assertion that he could not have learned “newly-

discovered facts” earlier by the exercise of due diligence, because (A) had

Appellant made “even a cursory attempt” to locate Watson, “that attempt

                                     -7-
J-S35035-20


would have been successful” since (1) Appellant knew Watson for several

years prior to the murder and could have attempted to contact him and/or

found out where he was living directly or through mutual acquaintances at

any time, (2) Appellant’s PCRA petition is devoid of any indication that he took

any steps to find Watson, including contacting Watson’s grandmother who still

lived in the neighborhood and knew where Watson was, and (3) nothing

prohibited Ms. Poole or other family members or acquaintances from going to

the “old neighborhood” before Ms. Poole did in early 2015, when she

encountered “P”; and (B) contrary to Appellant’s contention that he first

learned of Watson’s recantation from Watson’s affidavit in January 2016,

Appellant “could have discovered that Watson had the information he

eventually provided as early as March 2015 when Watson received a telephone

call from a friend indicating that [Ms. Poole] wanted . . . him to speak to an

investigator”; and (II) Appellant cannot satisfy the governmental interference

exception, because he (A) did not demonstrate that any governmental official

precluded or prevented him from raising any claim and (B) was not duly

diligent in seeking the facts on which his claims are based.).

      For the reasons set forth above, Appellant failed to satisfy any of the

exceptions to the PCRA time bar, and the PCRA court was without jurisdiction

to review the merits of Appellant’s claim and properly dismissed his petition.

Having discerned no error of law, we affirm the order below. See Medina,




                                     -8-
J-S35035-20


209 A.3d at 996. The parties are instructed to attach the opinion of the PCRA

court in any filings referencing this Court’s decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/20




                                      -9-
                                                                                         Circulated 08/05/2020 08:14 PM


                               IN THE COURT OF COMMON PLEAS
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                     CRIMINAL TRIAL DIVISION
                                                                                   2019 JUL      -9           PH     I:13
COMMONWEALTH OF
PENNSYLVANIA                                       CP-51-CR-0002735-2008
                                                                                                                          -T
                                                                                                            L.....   ,




         VS.
                                                                       CP-51-CR-0002735-2008 Comm.   v.   Poole, Andrew
                                                                                         Opinion



ANDREW POOLE,
            APPELLANT

                                                OPINION

MINEHART,      J


PROCEDURAL HISTORY

       On December 10, 2008, following a jury trial presided over by this Court, appellant, Andrew

Poole was convicted of first -degree murder, carrying a firearm without a license, intimidation of a

witness, and possessing an instrument of crime. These charges stemmed from an incident that occurred

on November 11, 2007, during which appellant shot and killed Mr. Tremayne Walker, who appellant

believed had given police information about a shooting that occurred on September 24, 2007, inside a

Philadelphia playground. On June 18, 2011, appellant received a sentence of life imprisonment on the

first -degree murder conviction, a consecutive sentence of ten to twenty years' incarceration on the witness

intimidation conviction, and concurrent sentences of varying lengths on the remaining charges.

Appellant thereafter filed a direct appeal and on May 4, 2011, the Superior Court affirmed the judgment

of sentence. Commonwealth v. Poole, 1795 EDA 2009. Appellant thereafter filed a petition for allowance

of appeal in the Supreme Court of Pennsylvania, which denied the petition on March                                   1,   2012.

Commonwealth v. Poole, 362 EDA 2011.

       On February 14, 2016, appellant filed an untimely counseled petition for post -conviction collateral

relief under the Post -Conviction Relief Act (hereinafter PCRA) 42 Pa.C.S.     §   9541 el seq. In it appellant

                                                     1
sought relief based on a recent affidavit provided by Mr. Terrell Watson, wherein he averred that he had

been forced by police to say that he heard Mr. Walker make dying declarations identifying appellant as

the person who had shot him and that he had testified falsely at appellant's preliminary hearing that

Walker identified appellant before he died because the police coerced him to do it. On November 29

2016, following a careful review of all of the filings and the entire record in the instant matter, this Court

sent appellant a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. On February 7, 2017, upon reviewing

appellant's response to the 907 notice and the record, this Court dismissed appellant's PCRA petition

without granting him an evidentiary hearing. Appellant thereafter filed a notice of appeal and a court -

ordered Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal.

       On March 27, 2019, the Superior Court issued an order reversing this Court's order dismissing

appellant's February 14, 2016, PCRA petition. The Superior Court also remanded the matter to this Court

with directions that it hold an evidentiary hearing to determine whether appellant properly pleaded and

proved that one of the exceptions to the PCRA's one-year time bar applied to excuse the late filing of his

most recent PCRA petition. This Court thereafter conducted said hearings and at the conclusion of the

hearing held on May 22. 2019, this Court held that appellant had not exercised due diligence in filing his

most recent PCRA petition and again dismissed the petition. Appellant thereafter filed a timely notice of

appeal and a court -ordered 1925(b) Statement of Matters.

FACT OF THE CASE

       The instant matter had its genesis in an incident that occurred on September 24, 2007, during

which a gun man wearing a mask began firing a hand gun into a crowd of people that included young

children at a Philadelphia playground. A one-year old infant and a man named Carl Wallace were struck

by the numerous bullets fired by the gunman. Witnesses could not identify the shooter, but appellant was

observed running through an alley following the shooting. (N.T. 12/5/08, 21-27, 45-52, 61; 12/8/08, 119-

121; 12/09/08, 4-5). Police investigation eventually focused on appellant who learned through the

neighborhood grape vine that Tremayne Walker had informed police that appellant was responsible for
                                                      2
the playground shooting. (N.T. 12/5/08, 127-129, 136-137). Appellant cut off his hair braids following

the shooting. (N/T/ 12/5/08, 46-57; 12/9/08, 8, 110-111, 115-116).

        On November 11, 2007, at about 5:00 p.m., Mr. Walker was in the area of 61' and Oxford Streets,

which was near the playground where the earlier shooting occurred, when appellant approached him and

shot him three times outside a church where a prayer meeting and a wedding were taking place. Walker's

injuries, which were to his liver, stomach, and left kidney and the blood vessels connected to those vital

organs, were fatal but before he expired he told several persons that appellant was the person who shot

him. (N.T. 12/5/08, 32, 34-35).'

        Mr. Terrell Watson, a friend of Walker's for several years approached Walker after he was shot

and asked him who had shot him. Watson, who was on his way to meet Walker after Walker called him,

testified at appellant's preliminary hearing that Walker told him, "If           I   die, Andrew Poole did it." Walker

also told Ms. Alice Holmes, someone who lived near the scene of the shooting and exited her home after

the shots were fired observed Walker slide off of a car and drop to the street. Ms. Holmes went over to

him and asked him who had shot him and he said, "Drew Poole... Andrew Poole... If I die, Drew Poole."

 (N.T. 12/4/08, 67-69; 12/5/08, l26).2

        Philadelphia Police Officers Michelle Proctor and Officer Robert Saccone arrived shortly after the

shooting and Officer Saccone heard Mr. Walker tell Mr. Watson that appellant had shot him. Mr. Walker

also directly told Officer Saccone that "Drew Poole got me" (N.T. 12/4/08, 88-90, 97).

        The next day, Ms. Holmes was outside her residence when appellant approached and asked, "You

know what happened?" She said, "Yeah,             I   know the guy that got shot... it was the boy who walks the

dog." Ms. Holmes became worried because of the way appellant appeared to be holding something in his

pocket, an object which Ms. Holmes believed to be gun. Appellant and Ms. Holmes then had a short


  Dr. Edwin Lieberman, the pathologist who performed the autopsy on the body of Mr. Walker testified that the wounds Mr.
Walker suffered would not have prevented him from speaking or moving around after he was shot for a short period of time.
(N.T. 1215/08, 38).
2 Watson did not appear at trial and was deemed unavailable. As a result, the Commonwealth was permitted to introduce the
testimony Walker gave during appellant's preliminary hearing.
                                                             3
conversation during which appellant said, "You know what happen to people that give up information....

They get served, you know." Ms. Holmes thereafter backed away from appellant and entered her

residence because she was afraid that appellant was going to shoot her. (N.T. 12/4/08, 71-74).

       When Ms. Holmes went inside her home she observed a photograph of appellant her police officer

daughter had placed there. Ms. Holmes told her daughter that the person in the photo looked like the male

who had just threatened her, her daughter convinced her to give a statement to homicide detectives. Ms.

Holmes acceded to the request and during her interview, Ms. Holmes participated in a photo identification

session during which selected appellant's photo and indicated that it depicted the male who had

threatened her. (N.T. 12/4/08, 74-75, 77).

       Police obtained a warrant for appellant's arrest in November of 2007 but despite efforts to locate

him conducted over the next couple of weeks they were unsuccessful. (N.T.12/8/08, 8-13). On December

19, 2007,   Philadelphia police learned that a man named Jarrell Patterson, who was a fugitive sought in a

murder case unrelated to the instant matter, was in the vicinity of the 5000 block of Market Street and that

appellant and another fugitive named Tamyo Bullard might be there as well.              Philadelphia Police

Detective William McCusker went to the aforementioned location and saw Patterson exit a side entrance

out of 5027 Market Street and then immediately turn around and go inside the building. The detective

called for backup and when they arrived, they entered the building and eventually apprehended appellant

and other persons. Appellant was taken into custody as he attempted to flee across a roof. He gave the

police the name Jason Gates when asked to identify himself. During the operation police recovered

several guns one of which testing revealed to be the gun fired at the playground and the location where

Walker was shot and killed.    (N.T. 12/4/08, 9-11   12/8/08, 18-20, 24, 31-35, 81, 83, 85-88).

       Upon arriving at police headquarters police had appellant supply biographical information. When

asked if his name, was in fact Jason Gates appellant stated, "It doesn't matter now, you got me. But how

did you know all the information about me? There must be a lot of people snitching." He then provided

police with his actual name, and said he resided at 1721 North 61st Street (N.T. 12/8/08, 44-52).
                                                     4
FACTS FROM THE PCRA HEARING

                During the evidentiary hearing, Terrell Watson testified that he testified for the

Commonwealth at appellant's preliminary hearing.Soon after the preliminary hearing occurred, he stated

that he joined the Army and left Philadelphia. (N.T. 5/16/19, 9-10). He stated that he was in the military

for one year, eight months and was stationed in Texas. (N.T. 5/16/19, 10). After leaving the military, he

did not return to Philadelphia and took up residence in Wilmington, Delaware. (N.T. 5/16/19, 10).

       Watson stated that after leaving Philadelphia he did not keep in contact with appellant, someone

he knew for many years and was good friends with him and knew him well. (N.T. 5/16/19, 11, 13, 16,

35). In 2015, he learned from a friend he identified only by the name "P" called him and told him that

appellant's sister "Viola" wanted him to speak to a lawyer or investigator for purposes of an appeal. (N.T.

5/16/19, 11-13, 31). On January 15, 2016, Watson met with a defense investigator and assisted in the

preparation of an affidavit wherein Watson averred that he lied during appellant's preliminary hearing that

the victim identified appellant as the person who shot him before he died because a police officer told him

that appellant needed to be off the street and it could only happen if he lied. (N.T. 5/16/19, 14-16).

Watson indicated that he did not tell anyone that he had lied both in a statement to police and during the

preliminary hearing before telling the investigator and that he decided to do so because he knew that his

testimony at the preliminary hearing had been false. (N.T. 5/16/19, 16-17).

       Watson, who did not appear at appellant's trial despite being subpoenaed to do so, explained that

he did not appear because he knew he had testified falsely at appellant's preliminary hearing and did not

want to commit perjury. (N.T. 5/16/19, 9-10). He thought that if he did not appear the Commonwealth

could not prove its case but did not realize that it could introduce his prior testimony in evidence. (N.T.

5/16/19, 16).

       On cross-examination, Watson stated that he remained in Philadelphia for several months after

testifying at appellant's preliminary hearing before joining the Army and believed he left joined the Army

in early 2009. (N.T. 5/16/19, 23-24). However, when pressed on when he entered the Army, he said that
                                                     5
he was not good with dates and it could have been in 2007 or 2008 "maybe two or three months after the

preliminary." (N.T. 5/16/19, 28).     During the period of time before he enlisted, persons in the

neighborhood were calling him a snitch and although he testified that he stayed in the house during that

period of time, he admitted going to classes at Community College of Philadelphia. (N.T. 5/16/19, 24-25).

       Watson also indicated that he was only in the Army for a year, eight months because he was

generally discharged under honorable conditions for having committed a theft. (N.T. 5/16/19, 25). He

further testified that he told no one except his grandmother that he had enlisted a couple of weeks before

he left. (N.T. 5/16/19, 25-27).

       With regard to "P", Watson said he was a guy he knew from the neighborhood and played

basketball with when they were young but had "no clue" what his actual name was. (N.T. 5/16/19, 29).

Watson said that although he had many telephone numbers, "P' managed to get his phone number from

Watson's Facebook account, which Watson thereafter deleted. (N.T. 5/16/19, 30). Watson also said that

"P" was the only person he spoke to from the neighborhood and that he would "frequent the

neighborhood here and there" but not "hang out" (N.T. 5/16/19, 30-31). Watson further added that he

called appellant's sister approximately one month after hearing from "P". (N.T. 5/16/19, 31-32).

       Watson stated that he knew that appellant had been convicted but could not recall how he knew

that and even though he knew it, it did not prompt him to say that he had lied at appellant's preliminary

hearing. (N.T. 5/16/19, 32-33). He further testified that when he and appellant played basketball together

appellant and likely his sister "Vi" as well knew where he and his grandmother lived and that appellant's

family also lived in that same neighborhood a couple of blocks from where appellant resided. (N.T.

5/16/19, 38-39).

       On re -direct examination, Watson testified that the victim herein was his best friend and that when

the Commonwealth came to his door to get him to take him to appellant's trial, he did not answer the

door. (N.T. 5/16/19, 40).


                                                    6
       Viola Poole, appellant's sister, testified that following appellant's conviction she did not try to

make contact with Watson and did not expect to. (N.T. 5/16/19, 45). She stated that she ran into "P" in

early March of 2015, when in the "old neighborhood" who asked her about her brother because she, "P",

Watson, and appellant used to play basketball together. (N.T. 5/16/19, 45-46). Ms. Poole asked "P" if he

knew where Watson was and to give him her phone number. (N.T. 5/16/19, 46). Watson thereafter called

her and told her that the killing did not "go down like that" and that he was willing to speak to someone.

(N.T. 5/16/19, 47). According to Ms. Poole, Watson did not relate anything about the case or what he was

going to say and that she did not ask him what he meant when he said it did not "go down like that." (N.T.

5/16/19, 47-48, 59-60).

       Ms. Poole added that she first learned that Watson had recanted his earlier account that the victim

said that appellant shot him in appellant's PCRA attorney's office on May 13, 2019. (N.T. 5/16/19, 61-

62). Prior thereto, she indicated that she did not know that Watson was willing to testify that the victim

could not talk after he was shot in contravention of his previous preliminary hearing testimony. (N.T.

5/16/19, 49).

       On cross-examination, Ms. Poole testified that she attended parts of appellant's trial but could not

recall hearing a police officer say that the victim identified appellant by name as his assailant. (N.T.

5/16/19, 50-52). Ms. Poole, like Watson, did not know "P's" real name. (N.T. 5/16/19, 53). She also

stated that she and her mother moved from the neighborhood in 2006 prior to the murder but that she still

had friends residing in the neighborhood and that her father and appellant remained as residents in the

neighborhood. (N.T. 5/16/19, 54-55).

        With regard to Watson, Ms. Poole stated that she sought out Watson on a hunch and wanted to

obtain his phone number because he failed to appear to testify at appellant's trial. (N.T. 5/16/19, 49). She

indicated that she did not seek out anyone else and was unaware that Watson had a Facebook account that

posted his phone number. (N.T. 5/16/19, 57-59).


                                                     7
       Ms. Poole testified that she did not immediately tell appellant that she had spoken to Watson

because she did not want to get his hopes up. (N.T. 5/16/19, 61). She also testified that she hired

appellant's current counsel. (N.T. 5/16/19, 62).

       Appellant began his testimony by stating that he did not know how to contact Watson and that he

first learned that Watson had provided an affidavit in January of 2016. (N.T. 5/22/19, 5, 6). When asked

when he first learned that the victim was unable to speak after he was shot, he said at the time of trial.

(N.T. 5/22/19, 5). He added that his sister Viola did not tell him that she had spoken to Watson after

talking to an investigator, he did not speak to the investigator himself before January 2016, and did not

have access to Facebook while incarcerated. (N.T. 5/22/19, 6). Finally, in contradistinction to what he

just testified to, he stated that he did not personally know whether or not the victim could speak after he

was shot and while on the way to the hospital. (N.T. 5/22/19, 7).

       On cross-examination, appellant stated that he first learned that the victim was unable to speak

when he received Watson's affidavit and not as he just testified at the time of trial. (N.T. 5/22/19, 7-8).

To explain the discrepancy, appellant stated that he had misunderstood the question. (N.T. 5/22/19, 8-9).

Appellant also stated that he did not know what Facebook was and that he also did not know "P's" actual

name and only played basketball with him. (N.T. 5/22/19, 11-12).

DISCUSSION

       In his 1925(b) statement appellant first asserts that this Court committed an abuse   of discretion by

finding that he did not exercise due diligence herein because he established that he did not know of the

information provided by Watson with regard to whether the victim was able to speak after he was shot

and that he could not have learned of that information by exercising due diligence and, therefore, that he

met the exception to the one-year time bar found at 42 Pa.C.S.         §   9545(b)(1)(ii). This Court, quite

obviously, does not agree and suggests that this claim be found lacking in merit.

       In Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010), the Superior Court stated:



                                                     8
                       The 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
               obtained 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. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590 (1999). This
               rule is strictly enforced. See Vega, supra at 718.

Monaco, 996 A.2d at 1080. See also Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The

determination of timeliness does not require a merits analysis. See id.; see also Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008); Commonwealth v. Brown. 141 A.3d 491, 500 (Pa. Super. 2016).

       Instantly, appellant asserted, inter alia, that he exercised due diligence because he could not have

known that Watson was going to recant his prior testimony and what was in his prior statement to police

until he provided his affidavit to appellant.   A review     of the record belies appellant's assertion first

because appellant knew Watson for several years prior to the murder herein and had been, according to

Watson, a good friend of his and thus, appellant could have attempted to contact him or actually contacted

him or find out where he was living directly or through mutual acquaintances at any time well before the

date Watson provided the affidavit. Moreover, appellant's PCRA petition is devoid of any indication that

he took any steps to find Watson, including contacting Watson's grandmother who still lived in the

neighborhood and obviously knew where he was      .   For this reason alone, appellant failed to establish that

he acted with due diligence.

       Moreover, appellant's sister found "P" because she was in the "old neighborhood." Certainly

nothing prohibited her or other family members or acquaintances from going there before Viola did in

early 2015 and had she or other persons associated with appellant done so, it is reasonable to assume that

she and/or they would have seen old friends and associates that could have led them to people who knew

Watson and could have provided information about where he could be located.


                                                      9
           Next, appellant testified that he was aware that the victim was physically unable to speak after he

was shot at the time his trial occurred. Thus, appellant certainly had an obligation to take steps to find his

good friend Watson to ascertain what he knew about the victim's ability to speak well prior to the time

Watson gave his affidavit.3 Although appellant tried to retract that testimony, this Court found his

explanation that he did not understand the question posed by his attorney not believable because the

question was not complicated and appellant answered it immediately without hesitation.

           Also, this Court did not find credible the explanation provided by Watson and appellant's sister

that he was located because appellant's sister serendipitously saw "P" while visiting the "old

neighborhood." Frankly, this Court found entirely fatuous and not credible that the entire investigation

commenced when Viola saw "P." In fact, this Court believes that there is no "P" because no one could

provide his name despite the fact that "P" was someone Watson, Viola, and appellant played basketball

with regularly.

           In addition, this Court determined, based on Watson's testimony, that had appellant made even a

cursory attempt to locate Watson, that attempt would have been successful. Watson testified that he

resided in the neighborhood following the shooting for several months and that after he joined the Army

he visited his grandmother on occasion who still lived in the neighborhood where the incident occurred

and appellant resided with his father before appellant was incarcerated. Although incarcerated, appellant

could have, directly or through others, contacted Watson's grandmother after he was convicted in an

attempt to locate Watson to confirm Appellant's knowledge that the victim was rendered incapable of

speaking as a result of having been shot.                 The concept of reasonable diligence is relevant where a

petitioner fails to investigate or question a potential witness with whom he has a close, amicable

relationship. Commonwealth v. Parker, 431 A.2d 216, 218 (Pa. 1981). See also Padillas, 997 A.2d at 367

(citing Commonwealth v. Chambers, 599 A.2d 630, 642 (Pa. 1991), cert. denied) (a defendant who fails

to question or investigate an obvious, available source               of information, cannot later claim evidence from

3   Watson stated several times that he and appellant were good friends.   (N.T. 5/16/19,   11, 13, 16,   35).
                                                                 10
that source constitutes newly discovered evidence); Commonwealth v. Crawford, 427 A.2d 166, 175 (Pa.

Super. 1981) (a defendant cannot claim he has discovered new evidence simply because he had not been

expressly told of that evidence).

        It is further noted that the sixty-day filing requirement is not measured from the time a petitioner

first obtains new information. Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). Instead, the law

requires a petitioner to file his petition within sixty days of the date that the claim first could have been

presented if he or she had exercised reasonable diligence. Id. If a petitioner completely "fails to explain

why, with the exercise of due diligence, the claim could not have been filed earlier," then he or she has

"fail[ed] to satisfy the sixty-day requirement." Id. (citing Commonwealth v. Breakiron, 781 A.2d 94, 98

(2001)). See Commonwealth v. Padillas, 997 A.2d 356, 364 (Pa. Super. 2010) (holding that a "defendant

who fails to question an obvious, available source of information cannot later claim evidence from that

source constitutes newly discovered evidence.").

       Here, appellant testified that he first learned of the information Watson provided when he received

Watson's affidavit in January of 2016. Viola also testified that she did not know what Watson set forth in

the affidavit until a couple of days before the first hearing herein on May 16, 2019, and that she did not

tell appellant that she had found Watson. This Court did not believe this testimony or Viola's testimony

that she just ran into "P." Viola testified that she paid for the investigation and thus, it makes absolutely

no sense that she would not have immediately wanted to know what, if anything, Watson said and that she

would not have immediately told her brother about what Watson said. The record shows that Watson

agreed well prior to signing his affidavit to provide the information he set forth in the affidavit he signed

in January   of 2016. Based on when Watson gave his affidavit and this Court's disbelief of the testimony

that Viola did not know what Watson said and appellant's claim that he first learned of the affidavit in

January of 2016, this Court concluded that appellant failed to meet his burden of proving an exception to

the PCRA's time -bar because his assertion that he did not know of the affidavit until January of 2016 was

not believable. See Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (appellant did not satisfy
                                                     11
requirement for time -bar exception where he did not state when he first learned of the facts underlying his

PCRA claims); Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (petition untimely where

appellant failed to offer reasonable explanation why, with due diligence, new information could not have

been obtained earlier); Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007) (to satisfy

requirements of §9545(b)(1)(ii), "[a] petitioner must... explain why his asserted facts could not have been

ascertained earlier with the exercise of due diligence"), allot. denied, 951 A.2d 1163 (Pa. 2008);

Commonwealth v. Holmes, 905 A.2d 507, 510-511 (Pa. Super. 2006), appeal denied, 917 A.2d 845 (Pa.

2007) ("While Holmes' petition was admittedly filed within sixty days of the date of the Fauntleroy

affidavit, there is absolutely no indication that Mr. Fauntleroy drafted the affidavit on the same day that he

first approached Appellant and revealed to him the new information. Thus, Holmes failed to demonstrate

the predicate requirement that the instant claim was raised within sixty days of the date it first could be

presented, and, therefore, he did not sustain his burden of pleading and proving that the after -discovered

evidence exception permits him to circumvent the statutory time -bar.").

       In addition, appellant could have discovered that Watson had the information he eventually

provided as early as March of 2015 when Watson received a telephone call from a friend indicating that

appellant's sister wanted to him to speak to an investigator. This Court concluded that had appellant

and/or members of his family made reasonable attempts to find Watson following appellant's conviction,

they too could have found Watson as well. The concept of reasonable diligence is relevant where a

petitioner fails to investigate or question a potential witness with whom he has a close, amicable

relationship. Commonwealth v. Parker, 431 A.2d 216, 218 (Pa. 1981). See also Padillas, 997 A.2d at 367

(citing Commonwealth v. Chambers, 599 A.2d 630, 642 (Pa. 1991), cert. denied) (a defendant who fails

to question or investigate an obvious, available source of information, cannot later claim evidence from

that source constitutes newly discovered evidence); Commonwealth v. Crawford, 427 A.2d 166, 175 (Pa.

Super. 1981) (a defendant cannot claim he has discovered new evidence simply because he had not been


                                                      12
expressly told of that evidence). Thus, for all of the foregoing reasons, it is suggested that this Court's

ruling declaring that appellant did not exercise due diligence be affirmed.

        With regard to the government interference exception, it was deemed not applicable because it is

wholly dependent on Watson's affidavit for its validity. Because appellant did not exercise due diligence

to obtain the information Watson provided it was clear that he could not meet the sixty day limitation set

forth in the PCRA with respect to his governmental interference claim. Moreover, appellant did not

demonstrate that any governmental official precluded or prevented him from raising the claim given that

Watson did eventually provide the information, which he himself said he gave because he "felt bad."

Finally, the exception does not apply because the defense presented no evidence other than Watson's that

a police officer lied

        Accordingly, this Court respectfully suggests that its ruling finding appellant's petition time -

barred be affirmed.



                                                      BY THE COURT:


DATE:7 4it 9.
                                                                FREY P. MINEHART




                                                     13
                                     CERTIFICATION OF SERVICE

       I,   Stacy Bauer, secretary to the Honorable Jeffrey P. Minehart hereby certify that on the   day

of July, 2019, a true and correct copy of the attached opinion was served upon the following:


Cheryl J. Sturm, Esquire
387 Ring Road
Chadds Ford, PA 19317

Lawrence J. Goode, Esquire
Chief-Appeals Unit
Phila. District Attorney's
Office
Three South Penn Square
Philadelphia, PA 19107




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