J-S43037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    LARRY J. MASON                               :
                                                 :
                       Appellant                 :   No. 190 WDA 2018

                Appeal from the PCRA Order December 21, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0004826-1992


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                               FILED AUGUST 29, 2018

        Appellant Larry J. Mason appeals pro se from the order denying his serial

Post Conviction Relief Act1 (PCRA) petition seeking relief from his 1994

aggregate sentence of life imprisonment for first-degree murder and firearms

not to be carried without a license.2 Appellant claims that the PCRA court

erred in concluding that he failed to establish that he timely filed his petition

after receiving newly discovered facts. We affirm.

        The facts and procedural history related to this appeal are well known

to the parties, and we briefly summarize the relevant portions of the record.

Following a jury trial, the trial court sentenced Appellant to serve life

imprisonment on January 5, 1994.               This Court affirmed the judgment of

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. §§ 2502(a) and 6106, respectively.
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sentence, and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Mason, 660 A.2d 655 (Pa. Super.

filed Mar. 10, 1995) (unpublished mem.), appeal denied, 668 A.2d 1127 (Pa.

1995).

       In his first PCRA petition, Appellant included several claims related to

Shaina Ballard,3 including (1) trial counsel was ineffective for failing to request

a pretrial lineup; (2) the Commonwealth failed to disclose evidence that

another witness for the Commonwealth threatened Ballard; and (3) the

Commonwealth failed to disclose possible plea agreements with Ballard. Am.

Pet. for Post-Conviction Relief, 4/27/00, at 5-6, 15-18. Appellant’s petition

included Ballard’s January 15, 2000 affidavit asserting that a Commonwealth

witness threatened her before trial. Aff. Shaina Ballard, 1/15/00. On July 25,

2002, this Court affirmed the denial of Appellant’s first PCRA petition without

a hearing, and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Mason, 808 A.2d 248 (Pa. Super.

filed July 25, 2002) (unpublished mem.), appeal denied, 819 A.2d 546 (Pa.

2003)




____________________________________________


3 At trial, Ballard testified that Appellant shot the victim with a .357 caliber
handgun after another individual stepped forward and kicked the victim. We
also note that Ballard referred herself as Shaina Ballard-Murray in her post-
trial affidavits and has also been referred to as “Shana Ballard.” We refer to
her as Ballard throughout this memorandum.



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       In his counseled second PCRA petition, Appellant raised a claim of newly

discovered facts based on Ballard’s June 23, 2003 affidavit that she recognized

Appellant based only on his eyes and that she did not tell the police that

Appellant shot the victim. Pet. for Post-Conviction Relief, 5/22/12; Aff. Shaina

Ballard, 6/23/03. Ballard also stated that she testified at trial that Appellant

was the shooter even though she really did not know who shot the victim.4

Aff. Shaina Ballard, 6/23/03. On October 16, 2013, this Court affirmed the

dismissal of Appellant’s second PCRA petition as untimely. Commonwealth

v. Mason, 87 A.3d 885 (Pa. Super. filed Oct. 16, 2013) (unpublished mem.)

The Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on May 27, 2014.           Commonwealth v. Mason, 93 A.3d 462 (Pa.

2014).

       Appellant filed the instant pro se petition, which the PCRA court

docketed on June 27, 2017.5 Appellant relied on an investigator’s notes of an

interview of Ballard conducted on April 17, 2017 and Ballard’s witness

statement on April 22, 2017. The PCRA court issued a Pa.R.Crim.P. 907 notice

____________________________________________


4 Appellant also relied on the affidavits of two other individuals who stated
that Appellant was not armed at the time of the murder, that they and
Appellant fled the scene after hearing one gunshot, and that they heard
additional gunshots as they were running from the scene.

5Appellant filed a counseled third PCRA petition seeking resentencing relief
based on Miller v. Alabama, 567 U.S. 132 (2012), and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016). The PCRA court denied relief because
Appellant was twenty years old at the time of the murder. Appellant did not
appeal the denial of his third PCRA petition.


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of intent to dismiss the petition as untimely. Appellant filed a pro se response,

which included Ballard’s supplemental witness statement dated June 28, 2017.

      A summary of Ballard’s April 17 and June 28, 2017 statements follows.

On the night of the murder, Appellant was among the group of eight to ten

individuals who entered the decedent’s apartment.           Witness Statement,

4/17/17, at 1. Appellant was also one of several of the individuals holding a

gun. Id. Immediately before the shooting, a person in a tan jacket came

between Appellant and the victim. Id. at 1-2. According to Ballard’s 2017

statements, Appellant stated that there was not going to be any shooting and

that he did not go to the apartment to shoot anyone. Id. at 2. Ballard then

heard a shot. Id. Ballard opined that Appellant could not have fired the shot

because the person in the tan jacket was standing between Appellant and the

victim. Id.

      Additionally, Ballard averred that police officers pressured her to identify

Appellant as the shooter.     First Supp. Witness Statement, 6/28/17, at 2.

Ballard asserted that she identified Appellant at trial as the shooter because

he looked familiar to her and because she saw his picture in the newspaper.

Id. Ballard repeated her assertion that other Commonwealth witnesses, who

were present in the apartment at the time of the shooting, threatened her not

to testify.   Witness Statement, 4/17/17, at 2.      She stated she made the

Commonwealth aware of those threats. First Supp. Witness Statement,

6/28/17, at 1.




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      Ballard explained that she did not give these details in her prior affidavits

because she “was never asked the right questions.”            First Supp. Witness

Statement, 6/28/17, at 2. She also asserted that she felt “bad,” was no longer

afraid, and was ready to tell the truth. Witness Statement, 4/17/17, at 2-3.

      The PCRA court denied Appellant’s petition on December 22, 2017,

without a hearing.    Appellant timely appealed.        The court did not order a

Pa.R.A.P. 1925(b) statement, but filed an opinion suggesting that Appellant’s

petition was untimely.

      Appellant presents the following question for review:

      Did the (PCRA) court err, and commit reversible error when it
      failed to recognize a timely presented motion to the court, that
      bias pertinent to the due process of the law with regards to final
      disposition of a (PCRA) petition under the time requirement of 42
      Pa.C.S.A. §9545(b)(2)?

Appellant’s Brief at 3 (full capitalization omitted).

      Appellant concedes that the instant petition was untimely on its face.

Appellant, as he did in his PCRA petition and his response to the PCRA court’s

Rule 907 notice, asserts that the alleged newly discovered facts set forth by

Ballard were unknown to him at the time of trial and that he filed within sixty

days of discovering Ballard’s most recent statements. Id. at 6-7. Appellant

avers in a single sentence that he exercised due diligence and cites to

Commonwealth v. Burton, 158 A.3d 618, (Pa. 2017). Id. at 7.

      When reviewing the dismissal of a PCRA petition as untimely, our review

is limited to “whether the record supports the PCRA court’s determination and



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whether the PCRA court’s decision is free of legal error.” Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

          The principles governing our review are well settled. “[T]he timeliness

of a PCRA petition is a jurisdictional requisite.” Commonwealth v. Brown,

111 A.3d 171, 175 (Pa. Super. 2015). A PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final” unless the petitioner pleads and proves one of three statutory

exceptions. 42 Pa.C.S. § 9545(b)(1).

          To     successfully     raise   the   newly   discovered       fact   under   section

9545(b)(1)(ii), a petitioner must show 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). In

determining whether a petitioner has acted with due diligence, we have

explained that “[d]ue diligence ‘does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable

effort’     to     obtain   the     information    upon   which      a    claim    is   based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation omitted).

Additionally, the petitioner must file his petition within sixty days of the date

the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

          In Burton, the Pennsylvania Supreme Court held “that information

which is of public record cannot be deemed ‘unknown’ for purposes of

subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.”




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Burton, 158 A.3d at 638.      The Burton Court, however, did not relieve a

petitioner from establishing the exercise of due diligence. See id. at 638.

      Instantly, Ballard began recanting her trial testimony identifying

Appellant as the shooter as early as 2000 and fully recanted her in-court

identification of Appellant by 2003.    Appellant previously litigated a PCRA

petition, his second, based on that recantation.

      In her 2017 witness statements, Ballard provided additional details

supporting her assertions that she was threatened and, for the first time,

opined that Appellant was trying to calm the situation and could not have shot

the victim.   She explained that she did not provide these details earlier

because she was not asked the right questions. However, Appellant’s instant

PCRA petition contained no allegations that he took any steps to elicit or obtain

the alleged newly discovered facts in the decade and a half since Ballard

initially recanted. Thus, even if Appellant filed his petition within sixty days

of receiving Ballard’s April 2017 statements, Appellant failed to establish that

he exercised reasonable diligence.      See Cox, 146 A.3d at 230; accord

Burton, 158 A.3d at 638.      Thus, we discern no error in the PCRA court’s

dismissal of Appellant’s fourth PCRA petition. See Lawson, 90 A.3d at 4.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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