J-S23020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERNEST JAMAL NELSON                        :
                                               :
                      Appellant                :   No. 1142 WDA 2018

               Appeal from the PCRA Order Entered July 16, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0003618-2000


BEFORE:      BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 09, 2019

        Appellant Ernest Jamal Nelson appeals from the order denying his third

petition filed under the Post Conviction Relief Act1 (PCRA). Appellant’s counsel

has filed a petition to withdraw and an Anders/Santiago2 brief.         For the



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2Counsel filed a brief and petition withdraw pursuant to Anders v. California,
386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Where counsel seeks to withdraw on appeal from the denial of PCRA
relief, a Turner/Finley “no-merit letter” is the appropriate filing. See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth
v. Widgins, 29 A.3d 816, 817 n. 2 (Pa. Super. 2011). For the reasons stated
below, we decline to consider whether counsel’s petition to withdraw and
Anders brief substantially comply with the requirements of Turner/Finley.
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reasons that follow, we remand for further proceedings consistent with this

memorandum.

      We previously summarized the facts of this matter in Commonwealth

v. Nelson, 1220 WDA 2016 (Pa. Super. filed July 7, 2017) (unpublished

mem.).   Briefly, Appellant was charged with voluntary manslaughter and

related offenses for his involvement in an April 1999 shooting. On October

25, 2000, following a jury trial, Appellant was sentenced to thirty-two to

seventy years’ incarceration. On direct appeal, this Court affirmed Appellant’s

judgment of sentence and the Pennsylvania Supreme Court denied review.

Thereafter,

      [o]n August 23, 2003, [Appellant] filed his first, counseled PCRA
      petition. That petition was denied on March 4, 2004, and after
      this Court affirmed on appeal, our Supreme Court denied
      [Appellant]’s subsequent petition for allowance of appeal.

      On February 9, 2011, [Appellant] filed a second pro se PCRA
      petition alleging the existence of newly-discovered exculpatory
      evidence. The PCRA court appointed counsel, who filed an
      amended PCRA petition on July 14, 2011. The PCRA court held a
      hearing on October 25, 2011, where [Appellant] and a witness,
      Alvin [Nix], testified that [Nix’s] deceased brother, Damion [Nix],
      was responsible for the shooting for which Appellant had been
      convicted. The PCRA court, determining that their testimony was
      not credible, denied the petition on November 3, 2011.

      Appellant filed a timely appeal from the denial of this second PCRA
      petition, and this Court affirmed, concluding that the PCRA court’s
      credibility determinations were supported by the record, and that
      [Appellant] “failed to provide newly-discovered evidence because,
      even if admissible, [Alvin] Nix’s testimony would not ‘likely compel
      a different verdict.’” Notably, neither the PCRA court, nor this
      Court, conducted any assessment of whether [Appellant]’s second
      PCRA petition, asserting the after-discovered evidence of Alvin
      Nix’s statement, met an exception to the PCRA’s one-year time-
      bar . . . .

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     On September 10, 2015, [Appellant] filed a third, pro se PCRA
     petition . . . . In that facially untimely petition, [Appellant]
     maintained that he satisfied the ‘new fact’ exception to the PCRA’s
     one-year time-bar. Specifically, [Appellant] asserted that he had
     “received information” that an individual named Ronald Robinson
     “was with Damion Nix[] when Damion shot Kevin Green.” See
     PCRA Petition, 9/10/15, at 3. [Appellant] further averred that he
     “sought to have this information either confirmed or denied [b]y
     Ronald Robinson[,]” and after “[e]xploring all avenues,” he finally
     received “in early September of 2015,” an affidavit from Robinson.
     Id.

     Appellant attached Robinson’s signed affidavit (dated August 28,
     2015) to his petition. Therein, Robinson stated that he and
     Damion Nix had gone to Frankie’s Bar on the night of the shooting
     and, once inside the bar, Robinson had given Nix one of two guns
     that Robinson had secreted into the bar. See PCRA Petition,
     9/10/15 (Sworn Affidavit of Ronald Robinson). Robinson stated
     that he and Nix then proceeded to the dance floor, where they
     saw Kevin Green and “[a]n argument immediately broke out
     between [Green] and [Nix].” Id. Robinson claimed that he and
     Nix “both pulled out our guns and started shooting.” Id. Robinson
     explained that after the shooting, he and Nix fled out a back door
     of the bar and “drove to the Rakin [sic] Bridge,” where Robinson
     “threw both guns into the river.” Id.

     On October 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907
     notice of its intent to dismiss [Appellant]’s petition without a
     hearing, stating only that his petition “is patently frivolous and
     without support on the record . . . .” Rule 907 Notice, 10/22/15,
     at 1. [Appellant] filed a pro se response, but on February 1, 2016,
     the PCRA court issued an order dismissing his petition.

     . . . . Appellant ultimately filed his notice of appeal within the time-
     frame mandated by the PCRA court. It does not appear from the
     record that the PCRA court directed Appellant to file a Pa.R.A.P.
     1925(b) concise statement of errors complained of on appeal.
     However, on September 22, 2016, the PCRA court issued an
     opinion, the entirety of which stated as follows:

        [Appellant] has appealed this [c]ourt’s dismissal of his most
        recent [PCRA] petition. This court has reviewed the petition
        and finds that it is time-barred for the same reasons as
        stated in the attached previous opinion dismissing a prior
        PCRA.


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J-S23020-19


      To this opinion, the court attached its opinion from 2012, in which
      it explained the basis for its denial of [Appellant’s] second PCRA
      petition, as follows:

         The sole issue on appeal is the allegation of an abuse of
         discretion in denying the Petition. This [c]ourt, during the
         evidentiary hearing, heard all of the testimony and observed
         all of the witnesses and concluded that the testimony of
         [Appellant], and witness Alvin [N]ix[,] was incredible. A
         credibility determination adverse to [Appellant] requires
         dismissal of the Petition and is not an abuse of discretion.

Nelson, 1220 WDA 2016, at *2-4.

      On appeal, this Court vacated the PCRA court’s order and remanded the

matter for the PCRA court to determine whether Appellant’s petition was

timely. Specifically, we explained:

      In his PCRA petition, [Appellant] invoked the after-discovered fact
      exception of section 9545(b)(1)(ii). However, the PCRA court
      never ruled on whether [Appellant] satisfied that exception.
      Instead, the court improperly dismissed his after-discovered
      evidence claim on the merits, cursorily deeming it ‘frivolous’ and
      unsupported by the record. Additionally, while the court’s Rule
      1925(a) opinion refers to [Appellant]’s petition as being ‘time-
      barred,’ the court relies on the rationale set forth in its 2012
      opinion, which made no mention of the timeliness of [Appellant]’s
      petition.

                                      ***

      Because in this case, we have no factual findings regarding the
      timeliness of [Appellant’s] petition - and, in particular, whether he
      exercised due diligence - we conclude that it is appropriate to
      remand this case for the PCRA court to render such findings in
      the first instance.

      Therefore, we vacate the PCRA court’s order dismissing
      [Appellant’s] petition and remand for a hearing, at which the PCRA
      court must first assess the timeliness of [Appellant’s]
      petition. If the court concludes that [Appellant] has met the
      timeliness exception of section 9545(b)(1)(ii), it must then

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      determine if Robinson’s testimony satisfies the four-pronged test
      for obtaining a new trial based on after-discovered evidence.

Nelson, 1220 WDA 2016, at *9-10 (emphasis added).

      On March 22, 2018, the PCRA court held an evidentiary hearing. See

N.T. PCRA Hr’g, 3/22/18. Appellant testified that Alvin Nix alluded to Ronald

Robinson’s involvement in the shooting at some point after his second PCRA

petition, but never directly stated it. Id. at 12-13. Appellant testified that he

continued to research who was at the bar on the night of the shooting. Id.

He stated that he “had a whiff” of Robinson’s involvement in 2015, which

prompted him to send a letter to Robinson. Id. at 15. Appellant explained

that in his letter, he asked Robinson if he was at the bar on the night of the

shooting. Id. He stated that Robinson responded by sending back a signed

affidavit implicating himself in the shooting. Id. Appellant testified that the

affidavit was dated August 28, 2015, and he filed his third PCRA petition on

September 10, 2015. Id. at 11.

      Appellant’s cousin, Devaughn Northcutt, testified that he received a

phone call from Appellant in August or September of 2015. Id. at 5. At that

time, Appellant instructed Northcutt to forward a letter from Appellant to

Northcutt’s cousin, Robinson, who was incarcerated at another state facility.

Id. Northcutt testified that he received Appellant’s letter “maybe a day later”

and immediately forwarded it to Robinson without opening the envelope. Id.

He stated that he received a reply letter from Robinson “maybe a week later.”




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J-S23020-19



Id. at 6. Northcutt stated that he immediately mailed Robinson’s letter to

Appellant without opening the envelope. Id.

      Appellant also called Robinson to testify on his behalf. However, at the

hearing, Robinson      asserted his   Fifth Amendment      right against self-

incrimination and refused to testify. Id. at 18.

      At the conclusion of the hearing, the PCRA court took the matter under

advisement and indicated that it would issue “an order either dismissing the

petition or an order granting [Appellant] a new trial.” Id. at 27. On July 16,

2018, the PCRA court issued an order denying Appellant’s petition. See PCRA

Ct. Order, 7/16/18. The order stated that Appellant’s petition was “patently

frivolous and without support on the record.” Id.

      Appellant timely filed a counseled notice of appeal on August 9, 2018.

On January 7, 2019, counsel filed a Pa.R.A.P. 1925(c) statement of intent to

file an Anders/Santiago brief. The PCRA court issued a Rule 1925(a) opinion

explaining that it “conducted a complete review of the file, the evidentiary

hearing and counsel’s submission and finds that the PCRA [petition] was

properly dismissed.”    Id. at 2.   The PCRA court did not make any factual

determinations and did not rule on the timeliness of Appellant’s petition.

      On appeal, counsel has filed an Anders/Santiago brief identifying

issues relating to the timeliness of Appellant’s petition and the merits of his

underlying claim. Anders/Santiago Brief at 16-17, 19. Counsel notes that

although the PCRA court’s dismissal “indicates that it found [Appellant’s]

testimony incredible[,]” the court did not “specifically state that [Appellant’s]

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petition was untimely. Based on [Appellant’s] and Mr. Northcutt’s testimony,

the [PCRA] court and this Court could determine that [Appellant’s] petition is

timely.” Id. at 18.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted). We grant great deference to

the PCRA court’s factual findings and we will not disturb them unless they

have no support in the record. Commonwealth v. Rigg, 84 A.3d 1080, 1084

(Pa. Super. 2014).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)

(citation omitted). A PCRA petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final.” 42

Pa.C.S. § 9545(b)(1). A judgment is final “at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:




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      (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). Moreover, a petitioner must file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S. § 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).

      We have explained that “the ‘new facts’ exception set forth at Section

9545(b)(1)(ii) does not require any merits analysis of an underlying after-

discovered evidence claim.” Brown, 111 A.3d at 179. To successfully raise

the newly discovered fact exception under section 9545(b)(1)(ii), a petitioner

must only establish that: (1) “the facts upon which the claim was predicated

were unknown” and (2) the facts “could not have been ascertained by the

exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). We have held that

“the due diligence inquiry is fact-sensitive and dependent upon the

circumstances presented.” Commonwealth v. Burton, 121 A.3d 1063, 1070

(Pa. Super. 2015). Further, “due diligence requires neither 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. at 1071 (citations omitted).


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       Here, there is no dispute that Appellant’s conviction became final in

2002 and that his instant PCRA petition, filed in 2015, is facially untimely. It

is also clear that Appellant raised the newly discovered fact exception in his

PCRA petition. Although the PCRA court complied with our order to conduct a

hearing, it appears that the PCRA court dismissed Appellant’s claim on the

merits without considering the threshold question of whether his petition is

timely.3 See PCRA Ct. Op., 1/10/19, at 1.

       Because the PCRA court did not make an explicit factual determination

on the timeliness of Appellant’s petition, it is unclear whether there was

jurisdiction to review the merits of Appellant’s underlying claim. See Brown,

111 A.3d at 175.        Moreover, we are unable to review the PCRA court’s

determinations for an abuse of discretion or error of law. See Rigg, 84 A.3d

at 1084; Lawson, 90 A.3d at 4. Therefore, we must again remand the matter

to the trial court for factual findings regarding the timeliness of Appellant’s

petition and whether he exercised due diligence. See Commonwealth v.

Bennett, 930 A.2d 1264, 1274 (Pa. 2007) (stating that a petitioner must

____________________________________________


3 In its Rule 1925(a) opinion, the PCRA court explained that this Court
“remanded the matter for essentially a hearing on whether [Appellant] was
entitled to a new trial on after-discovered evidence.” PCRA Ct. Op., 1/10/19
at 1. However, the prior panel of this Court remanded the matter for the PCRA
court determine whether Appellant met the requirements of the “new facts”
exception under Section 9545(b)(1)(ii). Only after the PCRA court determines
that the exception applies, should it proceed to a merits-based “after-
discovered evidence” analysis relevant to Section 9543(a)(2)(vi).         See
Brown, 111 A.3d at 176 (reiterating that Section 9545(b)(1)(ii) is “an initial
jurisdictional threshold” that must be established before a petitioner can
present a substantive after-discovered-evidence claim).

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“prove that the facts were ‘unknown’ to him and that he could not uncover

them with the exercise of ‘due diligence.’ Such questions require further fact-

finding and the PCRA court, acting as fact finder, should determine whether

Appellant met the ‘proof’ requirement under 42 Pa.C.S. § 9545(b)(1)(ii).”);

see also Burton, 121 A.3d at 1070.

      On remand, the PCRA court shall file a supplemental Rule 1925(a)

opinion within thirty days of this order. We instruct the PCRA court to make

a determination on whether Appellant has met the timeliness exception in

Section 9545(b)(1)(ii). If the PCRA court concludes that Appellant’s petition

is untimely, i.e., that Appellant failed to establish jurisdiction under Section

9545(b)(1)(ii), then the court must issue a supplemental opinion setting forth

its findings of fact and conclusions of law on that issue. See 42 Pa.C.S. §

9545(b)(1)(ii) (requiring a PCRA petitioner to allege and prove that there were

‘facts’ that were ‘unknown’ to him and that he could not have ascertained

those facts by the exercise of ‘due diligence’).

      If the PCRA court concludes that Appellant’s petition is timely, i.e., that

he proved the Section 9545(b)(1)(ii) timeliness exception, then the PCRA

court must issue a supplemental opinion setting forth its findings of fact and

conclusions of law on that issue.    The PCRA court must also set forth its

reasons   for   dismissing   Appellant’s   petition   on   the   merits.    See

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. Super. 2008) (setting

forth the four-pronged test for analyzing an after-discovered evidence claim).




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       In light of the foregoing, we also strike counsel’s Anders/Santiago brief

and direct counsel, within thirty days of the PCRA court’s supplemental

opinion, to file a new brief.        Upon further review of the record and the

supplemental opinion, if counsel finds a meritorious issue, counsel may file an

advocate’s brief. If counsel concludes that Appellant’s issues lack merit, then

counsel shall file a petition to withdraw and accompanying brief in compliance

with Turner/Finley.4 The Commonwealth may file a new brief within thirty

days of the date Appellant’s new brief is served.

       Order vacated. Counsel’s Anders brief stricken. Case remanded with

instructions. Panel jurisdiction retained.




____________________________________________


4  We note that Appellant filed a pro se response to counsel Anders brief on
May 21, 2019. In light of our disposition, we conclude that Appellant’s pro se
filing is premature.

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