J-S80011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 760 EDA 2017

              Appeal from the PCRA Order February 7, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0002735-2008


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

MEMORANDUM BY BOWES, J.:                         FILED MARCH 27, 2018

     Andrew Poole appeals from the PCRA court’s order granting the

Commonwealth’s motion to dismiss his PCRA petition.        We vacate and

remand for further proceedings.

     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 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
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     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 despite a diligent effort to do so.

     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


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alleging that he received an affidavit from Watson in which Watson recanted

his testimony indicating that Walker had identified Appellant as his shooter

on 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 this timely appeal followed. Appellant complied with the court’s

order to file a Rule 1925(b) concise statement of errors complained of on

appeal, and the court authored its Rule 1925(a) opinion. This matter is now

ready for our review.

     Appellant raises three questions for our consideration:

     I.    Whether the PCRA court erred when it granted the
           Commonwealth’s motion to dismiss without first holding a
           hearing to determine the credibility of the Affiant?

     II.   Whether the facts presented in Terrell Watson’s affidavit,
           which must be accepted as true for purposes of ruling on

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             the Commonwealth’s motion to dismiss, are sufficient to
             establish exceptions to the PCRA’s one year time bar for
             governmental interference and/or newly[-]discovered fact?

      III.   Whether the facts presented in Terrell Watson’s affidavit,
             which must be accepted as true for purposes of ruling on
             the Commonwealth’s motion to dismiss, are sufficient to
             establish the conviction was obtained by the knowing use
             of perjured testimony suborned by a police officer?

Appellant’s brief at 2-3.

      Our scope and standard of review of decisions denying relief pursuant

to the PCRA is well-settled. Our review of a PCRA court’s decision is limited

to examining whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal error.

Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa. 2017). Our review of

questions of law is de novo.      Id. at 625.    Under Pennsylvania Rule of

Criminal Procedure 907, the PCRA court may dismiss a petition without a

hearing if, after reviewing the petition, it is “satisfied from this review that

there are no genuine issues concerning any material fact,” and thus, the

defendant is not entitled to relief. Pa.R.Crim.P. 907(1). When performing

this review, the court must find that “the facts alleged would not, even if

proven, entitle the defendant to relief[.]” Id. at comment.

      We must first consider Appellant’s second issue, as it concerns our

jurisdiction over this matter.   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


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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 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.

         (2)          Any petition invoking an exception provided in
                      paragraph (1) shall be filed within 60 days of the date
                      the claim could have been presented.

      42 Pa.C.S. § 9545(b)(1) and (2).

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      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. We discuss each in turn.

      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 she could not have learned

the new fact earlier with the exercise of due diligence.”      Id.   (citation

omitted).

      Appellant appended to his PCRA petition a signed and notarized

affidavit provided by Watson on January 15, 2016.         He highlighted the

following statements made within the affidavit:


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           When I [(Watson)] got to the corner, Tremayne was
     running toward me, he was out of breath and bent over. I asked
     what happened and he said I’m shot. I’m shot and then he fell
     to the ground. I then asked him repeatedly, who shot you, was
     it Drew but he was incoherent while trying to speak and I could
     not understand what he was saying.

           The Philadelphia Police arrived and they were trying to talk
     to Tremayne but he was still incoherent and the police asked him
     who shot him but he was not able to answer. Tremayne just
     rolled on the ground in pain. The ambulance then arrived and
     took him away. When the ambulance left, the police officer
     asked everyone there, does anyone know anything and I said
     yes. I explained to the officer that I believe [Appellant] shot my
     friend over a previous argument.

            The officer then asked me did Tremayne tell me that
     [Appellant] shot him and I said he was trying to say something
     but no he did not. The officer then told me that [Appellant]
     needed to be off the street and that will only happen if I will say
     Tremayne told me [Appellant] shot him. At first, I told the
     officer that I did not think that was the right thing. The officer
     told me he was aware of [Appellant] and officers were looking
     for him already. The officer then said [Appellant] had shot up a
     playground with children in it, he has just shot your friend, so
     what is there to say he will not shoot you next.

            The officer said it would not be smart to make a statement
     if I did not say I heard Tremayne say [Appellant] shot him.
     Because [Appellant] would probably come looking for me and my
     family. So I agreed to make the statement and he drove me
     down there. I went to Homicide and told the Detective what the
     officer had instructed me to say. I then went home for the
     night. Over the next few weeks, I got a call to come and testify
     at the preliminary hearing and I did so and said what the officer
     told me to say which was Tremayne said [Appellant] shot him.
     When it was time for the trial, I felt guilty and did not go back
     thinking the case would be thrown out without me being present
     and I did not want to lie under oath again. Over the next nine
     years I felt bad but I was living my own life and it was an
     afterthought.

           Around March of 2015, I received a phone call from an old
     friend from the neighborhood named “P” telling me that

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      [Appellant’s] sister was filing an appeal for him and wanted to
      know if I would talk to an investigator on [Appellant’s] behalf
      and I agreed because I am a more mature person now and I
      have found a higher power. Also, I was in the military which
      gave me some core beliefs regarding honesty and integrity.

           For this reason, I felt I had no other choice but to right my
      wrong and tell the 100% truth.

Appellant’s brief at 9-11.

      Appellant maintains that he filed the instant PCRA on February 14,

2016, within sixty-days of his receipt of Watson’s affidavit. He claims that,

prior to receiving Watson’s affidavit, he could not have known that Watson

had lied at the preliminary hearing, and could not otherwise have compelled

him to recant his testimony. Thus, he relies on the date Watson signed his

affidavit as the triggering event for his obligation to file a PCRA pursuant to

the newly-discovered fact exception.

      The PCRA court determined that Watson’s affidavit failed to satisfy the

newly-discovered fact exception, and thus, his PCRA petition was barred by

the statutory time bar.      It found that Appellant had not acted with due

diligence since he had been friends with Watson since 1998, and thus, could

have contacted him prior to the date Watson provided the affidavit.        The

court also noted that Appellant did not aver what steps he took to locate

Watson. In addition, it found that Appellant did not allege when he actually

learned of Watson’s false testimony.     The court notes that, since Watson

agreed to meet with an investigator in March 2015, Appellant should have

filed his petition within sixty days of March 2015 because he could have

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learned of the information contained in Watson’s affidavit at that time.

Hence, the court concluded that Appellant’s petition was time-barred.

      Instantly, Appellant offered Watson’s recantation of his prior testimony

as a newly-discovered fact, which he learned when Watson provided the

affidavit on January 15, 2016. Appellant incorporated the memorandum of

law in support of his petition, which included Watson’s affidavit, into his

PCRA petition. When considering these documents together, Appellant pled

that he learned that Watson was willing to speak to an investigator on his

behalf in March 2015, and sometime thereafter, he learned of Watson’s

willingness to recant his prior testimony.

      We find that the PCRA court erred in finding that the sixty-day period

within which Appellant was required to file his PCRA petition began running

in March 2015, because the record does not conclusively settle whether

Appellant knew at that time that Watson would recant his testimony, or was

merely willing to speak with an investigator. We can infer from the record

that Appellant learned the content of Watson’s affidavit sometime after the

alleged phone call, either from the investigator or from Watson himself. It is

entirely possible that Appellant did not know that Watson had purportedly

lied during the preliminary hearing until January 15, 2016, when he provided

the affidavit, as he claimed. Hence, if Appellant could not have learned of

this fact until January 15, 2016, or at any time within sixty-days prior to the

filing of his PCRA petition, then Appellant’s petition would meet the PCRA’s


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sixty-day timeliness requirement. As the record does not support the PCRA

court’s finding in this regard, an evidentiary hearing is necessary to

determine     exactly   when    Appellant     could   have   ascertained    Watson’s

retraction through the exercise of due diligence.

      Moreover, we find the PCRA court erred in finding that Appellant had

not exercised due diligence since he had known Watson since 1998, and

could have otherwise contacted him during the nine intervening years

following his judgment of sentence and the filing of the instant PCRA

petition. On the record before us, there is no indication as to the nature or

length   of     Appellant’s    relationship   with    Watson,    other     than   the

Commonwealth’s assertion in its motion to dismiss that the two were long-

time friends.

      In addition, when considering that Watson averred that Appellant’s

sister sought him out in 2015, and only then did he consider recanting his

testimony, the record does not support the trial court’s finding that Appellant

could have discovered Watson’s recanted testimony earlier than he did. This

is especially true since Appellant’s conviction was based, in part, on

Watson’s prior testimony during the preliminary hearing that Walker had

identified Appellant as his assailant, and Appellant had no means to directly

dispute that testimony.       See Commonwealth v. Medina, 92 A.3d 1210

(Pa.Super. 2014) (finding defendant could not have discovered recanted

testimony through exercise of due diligence where witness “testified


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consistently and unequivocally at trial,” and defendant had no other factual

basis to counter that testimony). Hence, due to the fact-sensitive nature of

the due diligence inquiry, an evidentiary hearing is also necessary to

determine whether Appellant took reasonable steps to locate Appellant.

Shiloh, supra; see also Commonwealth v. Davis, 86 A.3d 883, 890-891

(Pa.Super. 2014) (finding that due diligence does not require a defendant

“should have assumed the Commonwealth’s witnesses were committing

perjury, and the Commonwealth was improperly permitting them to do so.”).

        Appellant   also    raises    a    claim    that     his    petition   satisfies   the

governmental interference exception to the PCRA’s time bar. In this vein,

the PCRA court determined, similar to its analysis above, that Appellant did

not exercise due diligence in obtaining Watson’s affidavit. Further, it found

that, since Watson provided the information, Appellant did not plead that a

government official prevented him from raising the claim.

        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.

Essentially, Appellant argues that the government actively hid the use of

perjured testimony from him, and thus, he could not bring the present

action until Watson’s affidavit apprised him of the falsified testimony.

____________________________________________


1   Brady v. Maryland, 373 U.S. 83 (1963).



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      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.”).   Since Watson’s affidavit, if proven to be true, may entitle

Appellant to relief, and this claim also relies on proof of his due diligence,

Appellant may, as noted above, offer such evidence at a hearing on remand.

      In summary, our 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. In light of this disposition, we cannot reach the merits of

Appellant’s remaining issues at this time.




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      Order vacated. Case remanded for further proceedings.   Jurisdiction

relinquished.

      Judge Musmanno joins this memorandum.

      Judge Shogan notes dissent.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18




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