                          [J-97A-2016 and J-97B-2016]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

  SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,               :   No. 668 CAP
                                            :
                    Appellant               :   Appeal from the Order entered on
                                            :   09/28/2012 in the Court of Common
                                            :   Pleas, Criminal Division of Philadelphia
             v.                             :   County at No. CP-51-CR-0823621-
                                            :   1984, granting a Stay of Execution
                                            :
TERRANCE WILLIAMS,                          :   SUBMITTED: August 25, 2016
                                            :
                    Appellee                :

COMMONWEALTH OF PENNSYLVANIA,               :   No. 669 CAP
                                            :
                    Appellant               :   Appeal from the Order entered on
                                            :   09/28/2012 in the Court of Common
                                            :   Pleas, Criminal Division of Philadelphia
             v.                             :   County at No. CP-51-CR-0823621-1984
                                            :
                                            :   SUBMITTED: August 25, 2016
TERRANCE L. WILLIAMS,                       :
                                            :
                    Appellee                :


                       OPINION IN SUPPORT OF REVERSAL


JUSTICE MUNDY                                         DECIDED: August 22, 2017
      Because I believe Williams has not met the governmental interference exception

to the PCRA time-bar, I would vacate the PCRA court’s order granting Williams a new

penalty phase hearing, and would reinstate Williams’ sentence of death.

      On June 11, 1984, Williams and Marc Draper, both 18 years old at the time,

murdered Amos Norwood. The facts presented at trial were summarized by this Court
in Williams’ direct appeal. See Commonwealth v. Williams, 570 A.2d 75, 77-79 (Pa.

1990). Briefly, I recount the following pertinent facts from our previous opinion.

       Early in the day on June 11, 1984, Williams and Draper were gambling when

they ran out of money. Williams devised a plan to travel to Norwood’s house to extort

money from him. Williams spent 15-20 minutes inside Norwood’s home while Draper

waited nearby. Williams returned with ten dollars, crossing paths with Norwood’s wife,

Mamie Norwood, while exiting the house. Williams and Draper left Norwood’s house

and returned to a gambling game they had been participating in prior to traveling to

Norwood’s home.

       Two or three hours later, Norwood was on his way to church when he passed

through an intersection where Williams and Draper were standing. Williams flagged

down Norwood, and got into Norwood’s car and drove away with him. A few minutes

later, the car returned to the intersection and picked up Draper. Before getting into the

car, Williams alerted Draper of his plan to give Norwood false directions so they could

rob him.

       Williams rode in the passenger seat, Draper in the rear seat behind the driver.

The pair gave Norwood false directions which led him to a dark secluded area near a

cemetery. Draper grabbed Norwood from behind, and Williams ordered him out of the

car. Norwood was led into the cemetery and forced to lie face down while Williams and

Draper searched him, finding twenty dollars in his sock. While Norwood begged for his

life, Williams and Draper tied his hands behind his back with his shirt, tied his legs

together with his pants, and stuffed his socks into his mouth.        Draper stayed with

Norwood while Williams returned to Norwood’s car. At that point, Draper had a foot on

Norwood’s back and was taunting him about liking boys. N.T., 1/22/86, at 813.




                            [J-97A-2016 and J-97B-2016] - 2
         Williams retrieved a socket wrench and a tire iron from Norwood’s car, and

began repeatedly hitting Norwood in the back of the head with the tire iron. At Williams’

prompting, Draper voluntarily began to strike Norwood in the head with the socket

wrench. Williams and Draper continued the attack until they believed Norwood was

dead. The pair then hid the body behind two tombstones, covering it with loose brush.

Williams and Draper disposed of the contents of Norwood’s glove compartment in a

trash can, and left with Norwood’s car. That night, Williams returned to the cemetery,

soaked Norwood’s body in gasoline, and set it on fire.

         The next morning, Williams picked up Draper in Norwood’s car and they returned

to the cemetery to examine the contents of the glove compartment they had thrown in

the trash can. In Norwood’s wallet they found a Mastercard and an AT&T telephone

card, both in Norwood’s name. The pair then picked up Ronald Rucker, and the trio

headed to Atlantic City, in Norwood’s car. The Mastercard and AT&T card were used in

Atlantic City.

         Norwood’s charred remains were found by a passerby on June 15, 1984. Draper

was arrested on July 20, 1984, and after learning of his arrest warrant, Williams turned

himself in on July 23, 1984.

         Williams testified at trial and denied any participation in the murder of Norwood,

or that he knew Norwood. Williams testified to being present in the car when Draper

and an individual named Mike Hopkins1 attacked Norwood. N.T., 1/27/86, at 1181-82.

He testified that he got out of the vehicle and walked away when the attack started. Id.

at 1183. Williams testified he met up with Draper later in the night and Draper told him

they had just robbed Norwood and stolen his car. Id. at 1186.


1
    Williams testified that Michael Hopkins died in 1984. N.T., 1/27/86, at 1225.



                               [J-97A-2016 and J-97B-2016] - 3
         On February 3, 1986, a jury convicted Williams of first-degree murder, criminal

conspiracy, and robbery.2 The penalty phase hearing commenced the same day, and

the jury found two aggravating factors: (1) Williams committed the murder while

perpetrating a felony, and (2) Williams had a significant history of felony convictions

involving the use or threat of violence to the person.3 The jury considered mitigating

evidence but found no mitigating circumstances. On February 4, 1986, the jury returned

a sentence of death, and on July 1, 1987, Williams was formally sentenced to death.

On February 8, 1990, this Court affirmed Williams’ sentence of death. Williams, 570

A.2d at 75. Williams did not seek certiorari.

         Williams filed his first, timely, PCRA petition on March 24, 1995. A hearing was

held on April 7-9, 13, 16-17, 1998. Williams abandoned his earlier claim that he did not

know Norwood prior to the date of the murder, and presented several witnesses who

testified to a homosexual relationship between Norwood and Williams. On October 20,

1998, the PCRA court denied Williams’ PCRA petition.               This Court affirmed.

Commonwealth v. Williams, 863 A.2d 505 (Pa. 2004).

         Williams filed two more PCRA petitions, which were dismissed by the PCRA

court as untimely on February 18, 2005, and June 1, 2005, respectively. Those orders

2
    18 Pa.C.S. §§ 2502(a), 903, and 3701, respectively.
3
  To support the second factor, the Commonwealth introduced evidence of Williams’
conviction for burglarizing the home of Hilda and Donald Dorfman on December 24,
1982. N.T., 2/3/86, at 1821. In said incident, Williams robbed the victims, pointed a gun
at Mrs. Dorfman, and fired a gun above the head of Mr. Dorfman. Id. at 1823. No one
was injured. Williams was convicted of two counts of robbery, and one count each of
burglary, simple assault, unauthorized use of an automobile, and conspiracy. Id. at
1821. The Commonwealth also introduced the evidence of Williams’ murder of Herbert
Hamilton on January 26, 1984. Id. at 1827. Hamilton died as a result of 20 stab
wounds to the body and injuries to the head from a baseball bat. Id. Williams was
convicted of third-degree murder, theft by unlawful taking, and possession of an
instrument of a crime. Id. at 1827-28.



                             [J-97A-2016 and J-97B-2016] - 4
were each affirmed by this Court on appeal. Commonwealth v. Williams, 909 A.2d 297

(Pa. 2006) (per curiam); Commonwealth v. Williams, 962 A.2d 609 (Pa. 2009) (per

curiam).

         While Williams’ third PCRA petition was pending, he filed a federal habeas

corpus petition pursuant to 28 U.S.C. § 2254, which was denied by the District Court on

December 19, 2005. The Third Circuit affirmed, and the United States Supreme Court

denied certiorari.4 Williams v. Beard, 637 F.3d 195, 238 (3d Cir. 2011), cert. denied

Williams v. Wetzel, 133 S. Ct. 65 (2012). In its opinion, the Third Circuit reviewed

Williams’ ineffective assistance of counsel claim and agreed with this Court’s conclusion

that counsel’s failure to present evidence of Williams’ psychological issues and years of

sexual abuse did not prejudice Williams. Id. at 234. It noted the mitigation evidence

elicited on collateral review was sympathetic and portrayed “a much more complicated

and troubled individual than the one depicted during the trial’s penalty phase.”         Id.

Nevertheless, the Third Circuit concluded this Court applied the Strickland test correctly,

and a finding of prejudice was not warranted based on Williams’ significant history of

violent felony convictions, that this was not his first murder, and the brutal facts of

Norwood’s murder. Id. at 236-37.

         On March 9, 2012, Williams filed his fourth, untimely, PCRA petition.         The

circumstances leading to Williams’ fourth petition arose on January 9, 2012, when the

Federal Community Defenders Office (FCDO) visited Draper at SCI-Frackville, where

he was serving a life sentence for his role in the murder of Norwood.5 Draper signed an


4
  The District Court denied Williams’ petition but granted a certificate of appealability as
to two issues. Williams, 637 F.3d at 198. The Third Circuit concluded the issues were
without merit and affirmed. Id.
5
    Draper pled guilty to second-degree murder on February 21, 1986.



                             [J-97A-2016 and J-97B-2016] - 5
affidavit that day stating he told prosecutors on at least one occasion that Norwood was

a homosexual and in a relationship with Williams. Aff. of Draper, 1/9/12, at 4. Draper

claimed the prosecution did not want to hear that, and they wanted him to testify that the

motive was robbery. Id. Draper signed a second affidavit on March 1, 2012, stating

that on the night of Norwood’s murder, Williams “snapped.” Aff. of Draper, 3/1/12, at 7.

Nothing in the second affidavit referenced a homosexual relationship between Williams

and Norwood. Following the second affidavit, the FCDO filed the aforementioned fourth

PCRA petition on March 9, 2012, on Williams’ behalf. Therein, Williams asserted, inter

alia, counsel was ineffective at the penalty phase for failing to put forth evidence to

mitigate the Commonwealth’s assertion that Williams grew up in a stable loving family,6

that the Commonwealth suppressed evidence of promises made to witnesses to induce

cooperation, and that his sentence of death must be vacated because his prior

conviction is also invalid based on the promises made to Draper. PCRA Pet., 3/9/12, at

23, 32, 39 and 46.

      On September 6, 2012, Williams filed a Motion for Discovery requesting the

Commonwealth produce police homicide files and activity sheets from the Herbert

Hamilton and Amos Norwood murders, as well as any reports or notes made

concerning Draper, Reverend Poindexter, or Norwood’s sexual relationship with

Williams or any child under the age of 18. Mot. for Discovery, 9/6/12, at 5-6. On

September 10, 2012, the PCRA court heard arguments on the pleadings to determine if

Williams’ PCRA petition warranted an evidentiary hearing. The PCRA court permitted

Williams the opportunity to obtain any additional information from Draper by September


6
  At Williams’ first PCRA hearing, he asserted a similar argument that counsel was
ineffective for failing to present mitigating evidence, namely that Williams was sexually
abused as a child and that he and Norwood engaged in a homosexual relationship.



                            [J-97A-2016 and J-97B-2016] - 6
13, 2012.    Draper signed a third affidavit on September 11, 2012, stating the

prosecutors and detectives he met with for trial preparation did not want him to testify

about Williams’ homosexual relationship with Norwood. Aff. of Draper, 9/11/12, at 7.

He stated, “I specifically remember Detectives telling me that information I gave them

was not credible. They did not want me to say the case involved a relationship. They

wanted me to say it was only a robbery.” Id. The PCRA court concluded there was

enough evidence to warrant an evidentiary hearing, which it scheduled for September

20, 2012.

      On September 18, 2012, the PCRA court ordered the Commonwealth to produce

the trial files for the Hamilton and Norwood homicides prosecuted against Williams in

1985 and 1986, respectively. On September 22, 2012, the PCRA court ordered the

Philadelphia Police Department files produced into discovery.

      The PCRA hearing was held on September 20 and 24, 2012. The only two

witnesses were Andrea Foulkes, the trial prosecutor in both homicide trials, and Draper,

the key witness at both trials. On September 24, 2012, Williams filed a written motion,

and on September 25, 2012, Williams made an oral motion to “conform the . . . proof to

the evidence submitted at the hearing[.]” N.T., 9/25/12, at 51. The PCRA court granted

Williams’ motion.    On September 28, 2012, Williams filed an Amendment and

Supplement to Petition for Post-Conviction Relief asserting claims based on evidence

contained in the Commonwealth’s files.

      That same day, after reviewing Williams’ supplemental petition, the PCRA court

granted Williams’ fourth PCRA petition concluding Williams met the governmental

interference exception7 to the PCRA’s timeliness requirement based on the

7
  The PCRA court found Williams had not satisfied the newly-discovered evidence
exception.



                           [J-97A-2016 and J-97B-2016] - 7
Commonwealth’s violation of Brady v. Maryland, 373 U.S. 83 (1963) for failing to turn

over documents which would have exposed that Norwood may have been a

“homosexual ephebophiliac.[8]” 42 Pa.C.S. § 9545(b)(1)(i); PCRA Ct. Op., 11/27/12, at

12-13. The PCRA court specifically found that “the Commonwealth suppressed multiple

pieces of evidence, all of which shared a common feature: each strengthened the

inference that Amos Norwood was sexually involved with boys around [Williams]’ age at

the time of his murder.”    PCRA Ct. Op., 11/27/12, at 12.       The PCRA court found

Williams only learned about this claim during the September 2012 evidentiary hearing,

and could not have raised it sooner. Id. Relevant to this appeal, the three items of

exculpatory evidence the PCRA court found were not discoverable by Williams due to

governmental interference are the following.

      First, a handwritten note by Then-Assistant District Attorney Foulkes, which was

never turned over to the defense, regarding a conversation she had with an unnamed

person from which she learned Norwood was accused by a parent of touching her son,

R.H., at Norwood’s church. Id. at 12 n.30. Second, a “sanitized” statement from Mrs.

Norwood that stated she awoke one night at 2:00 a.m. to find a young male standing in

her home.9 Id. at 12 n.31. She stated Norwood woke her to ask her for money and

then left with the male, which led her to believe the incident was a kidnapping. Her

husband returned at 9:00 a.m. and asked her not to call the police. Third, a “sanitized”

statement of Reverend Poindexter to police indicating that he believed Norwood may


8
  “‘Ephebophilia’ is the psychological term for the attraction of adults to adolescents. It
derives from the root ‘ephebe,’ which means ‘a young man.’” PCRA Ct. Op., 11/27/12,
at 13 n.32 (quoting MERRIAM-W EBSTER, W EBSTER’S NEW ENCYCLOPEDIC DICTIONARY 610
(2002)).
9
 The PCRA court found the statements were “sanitized” to remove any reference to
Norwood’s sexual orientation.



                            [J-97A-2016 and J-97B-2016] - 8
have been a homosexual and that a parent had disclosed to him that Norwood had

propositioned her 17-year-old son for sexual favors. Id.

       The PCRA court concluded, “[t]he government’s sanitization of Mamie Norwood’s

and Reverend Charles Poindexter’s statements, and flat non-disclosure of information

about Amos Norwood’s sexual advances on [R.H.], interfered with [Williams] and his

attorney learning that Mr. Norwood had engaged in sexually inappropriate behavior with

teenage boys other than [Williams].” Id. at 15. Thus, the PCRA court concluded the

withholding of this evidence resulted in the inability of Williams’ attorney to “‘discover or

develop’ a Brady claim rooted in information removed from the scrubbed statements.”

Id. The PCRA court denied all guilt phase issues, granted a stay of execution, vacated

Williams’ death sentence, and ordered a new penalty hearing.

       On October 3, 2012, the Commonwealth appealed, arguing Williams’ PCRA

petition was untimely and did not meet the governmental interference exception to the

PCRA’s timeliness requirements. Alternatively, the Commonwealth argued that if the

petition was deemed timely, Williams’ Brady claim would be meritless as it would not

have been reasonably likely to change the outcome, had no apparent exculpatory value,

and had been known all along by Williams.

       This Court filed an opinion vacating the PCRA court’s order and reinstating

Williams’ sentence of death on December 15, 2014. Williams, 105 A.3d at 1236. On

June 9, 2016, the United States Supreme Court granted certiorari, vacated this Court’s

judgment, and remanded the matter on due process grounds.10                     Williams v.

Pennsylvania, 136 S. Ct. 1899 (2016). Thus, the Commonwealth’s appeal from the

PCRA court’s September 28, 2012 order is before this Court a second time.

10
  The Supreme Court expressed no opinion on the merits analysis of this Court’s prior
opinion.



                             [J-97A-2016 and J-97B-2016] - 9
      Our standard of review “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. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citation

omitted). A PCRA petition must “be filed within one year of the date the judgment

becomes final[.]”   42 Pa.C.S. § 9545(b)(1).      “[A] judgment becomes 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.” Id. § 9545(b)(3). “This timeliness requirement is jurisdictional in

nature, and a court may not address the merits of any claim raised unless the petition

was timely filed or the petitioner proves that one of the three exceptions to the

timeliness requirement applies.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016)

(citing Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012)). Further, “a petition raising

an exception to the one-year timeliness requirement must ‘be filed within sixty days of

the date the claim could have been presented’ pursuant to 42 Pa.C.S. § 9545(b)(2)[.]”

Commonwealth v. Hackett, 956 A.2d 978, 982 (Pa. 2008).

      Instantly, there is no dispute that Williams’ petition is untimely, as it was filed

more than twenty years after his judgment of sentence became final.            Therefore,

Williams was required to prove one of the three timeliness exceptions to the PCRA

applied.

      The three timeliness exceptions to the PCRA are:

             (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


                           [J-97A-2016 and J-97B-2016] - 10
              (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).

       The PCRA court found Williams’ petition satisfied the “governmental interference”

exception.11 Id. § 9545(b)(1)(i); PCRA Ct. Op., 11/27/12, at 14. Williams asserts that

he exercised due diligence because Draper was unwilling to speak to anyone before

January 9, 2012. Once Draper gave the January 9, 2012 affidavit, Williams met the

jurisdiction requirement as his March 9, 2012 PCRA petition was filed within 60 days of

Draper’s January 9, 2012 affidavit.

       In order to successfully plead governmental interference, an appellant must

satisfy Section 9545(b)(1)(i) and show that the claim could not have been previously

raised based on interference by government officials. “Although a Brady violation may

fall within the governmental interference exception, the petitioner must plead and prove

the failure to previously raise the claim was the result of interference by government

officials, and the information could not have been obtained earlier with the exercise of

due diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). As the

PCRA court correctly notes, “[w]hen a claim of governmental interference is rooted in

the Commonwealth’s failure to produce exculpatory evidence, [a PCRA petitioner] bears

the burden to ‘identify a specific claim that he was unable to discover or develop due to

the District Attorney’s conduct.’” PCRA Ct. Op., 11/27/12, at 14 (citing Commonwealth

v. Howard, 788 A.2d 351, 355 (Pa. 2002) (internal citation omitted)). Therefore, before

addressing the merits of Williams’ Brady claim, it is first necessary to determine whether

11
   The PCRA court expressly found that governmental interference was the only
timeliness exception that applied. PCRA Ct. Op., 11/27/12, at 11 n.28.



                             [J-97A-2016 and J-97B-2016] - 11
Williams exercised due diligence in presenting the claim that Norwood may have been a

homosexual ephebophile.12

      I note that no one has argued, or attempts to argue, that the governmental

interference exception is met by merely asserting that the government withheld

evidence. Such a standard would result in granting all PCRA claims of governmental

interference when the appellant asserts a violation of Brady based on evidence withheld

by the government, regardless of whether the substance of the alleged Brady evidence

was already known to the appellant. The PCRA’s timeliness requirement cannot be met

by simply asserting a claim that the appellant did not know about the specific piece of

evidence withheld by the government.       Rather the withheld evidence must contain

“information [that] could not have been obtained earlier with the exercise of due

diligence.” Abu-Jamal, 941 A.2d at 1268. Nevertheless, the OISA maintains all that is

required is proof that the government withheld information - regardless of the substance

of that information.   Established law states that “a Brady claim may fall within the

governmental interference exception[,]” id., but by the dissent’s interpretation a Brady

claim pertaining to withheld evidence will always satisfy the governmental interference

exception and bypass the PCRA’s time bar.

      The Commonwealth argues that not only did Williams fail to exercise due

diligence, he “conclusively proved” he already knew of Norwood’s “alleged sexual

misconduct    decades    before   he   filed   his   untimely   fourth   PCRA   petition.”



12
  I disagree with the Opinion in Support of Affirmance (OISA)’s implication that Williams
could not have ascertained the information necessary to form his Brady claim through
the exercise of due diligence. OISA at 18 n.5. The test is not whether he could have
discovered the specific evidence withheld, but rather if he could have discovered
evidence to support a Brady claim that Norwood was a homosexual ephebophile. I
maintain that Williams failed to exercise due diligence as illustrated by the evidence
presented at the 1998 PCRA hearing.



                           [J-97A-2016 and J-97B-2016] - 12
Commonwealth’s Brief at 27. The Commonwealth asserts Williams “was not entitled to

circumvent the PCRA’s filing deadline by reviving an old allegation against the victim

based on new sources of previously-known information.” Id. at 25.

       Specifically, the Commonwealth notes that at trial the evidence demonstrated

Williams had personal knowledge of Norwood’s sexual orientation, and tried to extort

Norwood by threatening to expose it. Id. at 29. It argues the evidence demonstrated

that Draper taunted Norwood prior to the murder by stating “oh, you like boys.” Id.

Further, the Commonwealth notes that, in a pretrial statement dated July 18, 1984,

Ronald Rucker averred Williams had described Norwood to him as a homosexual,

stating he “‘had been with [Norwood] before’ in exchange for money.” Id. Accordingly,

the Commonwealth argues that “a claim that Norwood was homosexual and may have

had sexual encounters with male teenagers ‘could have been presented’ much sooner

than [Williams’] fourth PCRA petition in 2012[.]” Id.

       The Commonwealth argues that Williams “actually did present such a claim at

the proceedings on his first PCRA petition in 1998[,]” noting Williams’ current attorneys

argued to the PCRA court that Norwood “molested young boys.”               Id. (emphasis

removed) (citing N.T., 4/8/98, at 235). The Commonwealth points to the 1998 PCRA

hearing, where Williams presented several witnesses to testify that he was a victim of

sexual abuse throughout his childhood, and that Williams had a sexual relationship with

Norwood.

       Williams asserts the PCRA court correctly determined he had proven the

governmental interference exception to the PCRA’s timeliness requirement. As noted,

in addition to the due diligence requirement, the PCRA requires a petitioner to file a

PCRA petition within 60 days of discovering a timeliness excepted claim. 42 Pa.C.S.

§ 9545(b)(2). Williams asserts the triggering date for filing his fourth PCRA petition was




                            [J-97A-2016 and J-97B-2016] - 13
the affidavit of Draper signed on January 9, 2012. Williams notes he filed his PCRA

petition on March 9, 2012, exactly 60 days from the date of Draper’s affidavit, and

therefore it was timely.13

13
    I would be remiss if I failed to note that upon inspection of the certified record, a
declaration of Reverend Poindexter from February 9, 2011, disclosed the information
upon which the very claims subject to this appeal are based. The declaration stated
that he suspected Norwood’s death may have been related to his relationship with
young men. Dec. of Poindexter, 2/9/11, at ¶ 10. The declaration also states that Mamie
Norwood disclosed to him that sometimes young men would show up at their house
looking for Norwood, and that Norwood would go missing for periods of time. Id. He
further stated that he learned Norwood was spending time at a house or apartment in
Center City with gay men. Id. at ¶ 11. Finally, the declaration states that Poindexter
was approached by a mother of a 15-year-old boy at St. Luke’s who alleged Norwood
inappropriately touched her son and other boys at the church. Id. at ¶ 15. Importantly,
unlike Draper’s declaration, Reverend Poindexter’s declaration does not indicate he was
unwilling to speak with anyone prior to the date of the declaration.

       Williams’ March 9, 2012 PCRA petition references the declaration made by
Reverend Poindexter in support of his argument that Poindexter “thought for years that
Norwood lived a double life as a closeted homosexual; that Norwood’s close mentoring
relationships with troubled young boys were a source of suspicion and rumors in the
church; and that parents of boys involved in youth activities with Norwood complained to
Reverend Poindexter about Norwood molesting their sons.” PCRA Pet., 3/9/12, at 14.
Attached to the PCRA petition is an Appendix containing several witness declarations,
including Reverend Poindexter’s. Curiously, the table of contents dates the report as
February 9, 2012, but the actual document is signed and dated by Reverend Poindexter
with the signature “Charles Poindexter, 2/9/11[.]” PCRA Pet. App., 7/16/12, at Tab 10.
Reverend Poindexter’s declaration includes all three points of evidence at issue now. If
the declaration was in fact given on February 9, 2011, Williams only had until April 11,
2011 to file his PCRA petition asserting said claims.

        It appears likely that the 2011 date was discovered in preparation of the petition,
and is bolstered by the fact that Williams’ PCRA petition never cites the date of the
Poindexter declaration despite multiple references to it, and instead, repeatedly refers to
it as a “recent declaration” or “Poindexter Declaration.” See PCRA Pet., 3/9/12, at 14-
15, 19, and 33. However, the dates of all other declarations and affidavits are included
in the citations to each document.

        Williams asserts he met the governmental interference exception as he filed his
petition within 60 days of Marc Draper’s January 9, 2012 declaration. Id. at 21-22, ns.
Any reference to Reverend Poindexter’s declaration is omitted from the timeliness
discussion.     Additionally, Williams never explains why Reverend Poindexter’s
(continued…)

                             [J-97A-2016 and J-97B-2016] - 14
      Upon review of the certified record and the relevant case law, I conclude that

Williams failed to meet his burden under the governmental interference exception to the

PCRA’s timeliness requirement.        The three pieces of evidence the PCRA court

concluded violated Brady contained allegations of Norwood’s alleged sexual orientation

and homosexual ephebophilia. Evidence was presented at Williams’ 1986 trial, 1998

PCRA hearing, and in his 2005 federal habeas petition claiming these same allegations.

I agree with the Commonwealth’s assertion that Williams knew of Norwood’s alleged

homosexual ephebophilia, not just Norwood’s sexual orientation, even before the

Poindexter and Draper declarations.

      At trial in 1986, Draper testified he participated in the murder of Norwood, and he

and Williams acted together.     N.T., 1/22/86, at 657.   On the night of the murder,

Williams indicated to Draper that he could obtain money from Norwood by threatening

to reveal Norwood’s homosexuality to Norwood’s wife.         Id. at 667-68.   On cross-

examination, Draper testified that when Williams went to the car to get the tire iron and

wrench he was standing over Norwood and taunting him by saying “oh, you like boys.”

Id. at 813. Draper stated, he was taunting him because Williams had told him that

Norwood was a homosexual. Id. Accordingly, at the time of trial, testimony referencing


(…continued)
information was undiscoverable prior to Draper’s declaration. Draper’s declarations
never mention Reverend Poindexter, nor do they assert a basis for Norwood’s alleged
homosexual ephebophilia. Based on the record evidence of Poindexter’s February 9,
2011 signed declaration, and the further lack of explanation regarding the ability to
discover Reverend Poindexter’s claim prior to Draper’s declaration, we could conclude
on these bases alone that Williams failed to assert a claim regarding Norwood’s alleged
homosexual ephebophilia within 60 days of discovering the claim. Nevertheless, there
are implications that the interviews with prior witnesses commenced after Draper’s first
declaration on January 9, 2012. Thus, February 9, 2012 would be a more likely date for
Reverend Poindexter’s declaration. Accordingly, I do not base my decision on Williams’
failure to file a PCRA petition within 60 days of February 9, 2011, the date on Reverend
Poindexter’s declaration.



                           [J-97A-2016 and J-97B-2016] - 15
Norwood’s alleged homosexual contact with Williams was known by Williams, and

Williams was not precluded from presenting a claim regarding Norwood’s alleged sexual

orientation and proclivity for teenage boys.

       In fact, Williams did present this argument at the 1998 PCRA hearing. Williams

first presented three experts who evaluated him and concluded his mental state was

affected based on a history of physical and sexual abuse and anger regarding his

sexuality. The defense called Dr. Julie Kessel, an expert in forensic psychiatry who

conducted a forensic mental health evaluation of Williams. N.T., 4/8/98, at 40. Williams

indicated to her that he was sexually assaulted when he was about 5 or 6 years old by a

friend who was 10 or 11. Id. at 64. He also reported a relationship with a male teacher

who sexually molested him on several occasions. Id. Williams told Dr. Kessler this

caused him to develop feelings of rage towards males who made him feel sexual or

behaved sexually towards him. Id. at 66. Williams alluded to sexual relationships with

several other men but he was not forthcoming about them. Id. at 72. In regard to the

Hamilton murder, Dr. Kessel testified there was evidence of a homosexual relationship

between Williams and Hamilton. Id. at 77. In reviewing the Hamilton file, Dr. Kessler

testified there was evidence that suggested Williams was engaged in a homosexual

prostitution ring. Further, Dr. Kessel testified that at the time of the Norwood murder,

she believes Williams’ murder of Hamilton made him less able to appreciate what he

was doing to Norwood. Id. at 115. Dr. Kessler testified that, if there was a sexual

component to Williams’ relationship with Norwood, it would have “substantially

contribute[d] to a reduction in his ability to control his impulses around somebody who

would make or whom he would interpret to make an advance.” Id. at 159.

       Dr. Patricia Fleming, a clinical psychologist, reviewed Williams’ file and

interviewed him. She testified that the subsequent burning of the body indicated to her




                           [J-97A-2016 and J-97B-2016] - 16
this was not just a robbery, but a crime of rage. N.T., 4/9/98, at 361. She testified that

Williams and Draper were threatening to expose Norwood’s homosexuality, and that it

likely contributed to Williams’ motive. Id.

       Dr. Ralph Kaufman, a psychiatrist in private practice conducted three separate

clinical interviews of Williams. N.T., 4/13/98, at 519. In his final interview with Dr.

Kaufman, Williams admitted to murdering Norwood. Id. at 542. Dr. Kaufman testified

that Williams implied the motive for murdering Norwood was his anger over being

abused by Norwood. Id. at 569.

       Additionally, despite the PCRA court’s assertion that Williams was unable to elicit

testimony about Norwood’s alleged homosexual ephebophilia at the 1998 PCRA

hearing, and that he was “stifled in his presentation of that evidence by the

Commonwealth’s steadfast representation that there was no such evidence,” Williams

presented the testimony of several witnesses who testified to their knowledge of

Norwood’s alleged homosexual ephebophilia. PCRA Ct. Op., 11/27/12, at 21.

       James Villarreal, a former teacher, coach, and mentor to Williams, testified that

Norwood had a reputation for molesting young boys. N.T., 4/8/98, at 208, 227. He

testified to learning this through his employment in the school system, and named a

Mrs. Locket and Timothy Collins as sources of his information. Id. Villarreal testified he

wasn’t disputing the evidence of the murder and robbery, but that the motivation may

have had a homosexual element. Id. at 234. During Villarreal’s testimony, the PCRA

court asked the defense if they were trying to prove that Amos Norwood molested

young boys, to which defense counsel replied “we are trying to, as best we can.”14 Id. at


14
  The OISA asserts that the Commonwealth falsely represented to the PCRA court that
no evidence of Norwood’s homosexual ephebophilia existed. However, the exact
exchange between the PCRA court and the Commonwealth was as follows.
(continued…)

                            [J-97A-2016 and J-97B-2016] - 17
235. Further, the PCRA court asked Villarreal if he was ever contacted by Williams’

defense attorney, to which he replied “No.” Id. at 240. The PCRA Court then asked,

“[h]ad you been contacted by [Williams’] defense attorney or by an investigator or by

someone else working for the defense attorney you would have spoken to that person

freely?” Id. Villarreal indicated that he would have spoken freely and given the same

testimony. Id.

      Finally, Donald Fisher, a childhood friend of Williams who was in a sexual

relationship with him for four or five years, testified. N.T., 4/13/98, at 596. Fisher

indicated there was a sexual relationship between Williams and Draper, and a sexual

relationship between Williams and Norwood. Id. at 600, 605. Fisher claimed to have

knowledge that Williams performed sexual favors for Norwood in exchange for “money

and, you know, beer and stuff.” Id. at 618. He also testified that Norwood “was very


(…continued)
The Commonwealth: Well, Your Honor, I was only going to remind the Court that, in
fact, there was evidence that this defendant knew some sort of dark secret about Mr.
Norwood, because this case began as an extortion. He suggested to this co-defendant
they knew - - that he knew something about Mr. Norwood which would enable them to
extort money from Mr. Norwood and Mr. Norwood - -
The Court: But there is nothing in this case involving Norwood’s homosexuality or
violation of young boys - -
The Commonwealth: Well, that was the secret.
The Court: -- that accrued that was involved
The Commonwealth: Oh, no, just that [Williams] knew about Norwood’s behavior and
was trying to extort money from it. It didn’t work so it moved on to robbery and murder,
so it was not a secret. It was not a secret to anyone at the time.
The Court: You may proceed.
N.T., 4/8/98, at 237. Contrary to the OISA, the Commonwealth never asserted to the
PCRA court that no evidence existed. Rather, the Commonwealth stated no evidence
was presented at trial, a fact that is not in dispute.



                          [J-97A-2016 and J-97B-2016] - 18
degrading and he liked to have sex with kids[,]” which the Commonwealth objected to.

Id. at 602. The PCRA court indicated it was going to allow the testimony to come in to

show what was available, but clarified “whether what was available to trial counsel

would have been admissible at trial or what impact it would have on trial are matters for

argument.”15 Id. at 603.

      Additionally, in 2005, in its review of the lengthy procedural history of this matter,

the Third Circuit noted that the penalty phase was brief, but that at the 1998 PCRA

hearing “a very different picture of Williams emerged.” Williams, 637 F.3d at 229. The

Third Circuit recounted the aforementioned evidence of Williams childhood “plagued by

frequent physical and sexual abuse[,]” and his involvement in a sexual relationship with

Norwood. Id.

      Accordingly, the three pieces of evidence the PCRA court deemed the

Commonwealth withheld, would only have been cumulative of the assertions Williams

had already presented, i.e., that Norwood allegedly had homosexual relationships with

teenage boys.    The first piece of evidence, the handwritten note in the file never

specifically mentioned Norwood by name and in vague terms referenced an incident

15
   The OISA characterizes this exchange as the PCRA court indicating it was not going
to consider Fisher’s testimony, and somehow also extends this to include Villarreal’s
testimony. However, the PCRA court merely stated that it could not consider the
hearsay as fact. At the outset of Fisher’s testimony, the PCRA court stated “I will not
rely I don’t expect no [sic] Court to rely on hearsay or just conclusions of this witness.”
N.T., 4/13/98, at 600. The Commonwealth objected to Fisher’s testimony regarding
Norwood’s reputation, to which the Court responded, “Again, I will not consider it as a
fact . . . There would have to be evidence of it . . . A statement by any witness of this
nature doesn’t have much credibility or impact. With that in mind, I’m going to accept it.”
Id. at 602-603. The PCRA court in 1998 accepted the testimony as evidence of what
was available to the defense in its preparation of trial. For purposes of our review of
Williams’ due diligence, this Court is tasked with determining if evidence of Norwood’s
homosexual ephebophilia was ever presented. The statements of Villarreal and Fisher
were as informative as those of Mrs. Norwood and Reverend Poindexter in their
implications that Norwood had engaged in sexual acts with teenage boys.



                           [J-97A-2016 and J-97B-2016] - 19
with an individual at church, but stated it was never verified. Second, Mamie Norwood’s

statement made no indication that she knew of or believed the incident she witnessed

was in any way related to her husband’s sexual orientation.         The statement only

indicated that she believed it was a kidnapping.        Finally, Reverend Poindexter’s

statement that Norwood may have been a homosexual was a fact that had been

presented several times over the years, and his statement that he had received a

complaint alleging an incident occurred with a male corroborated the information

Williams already allegedly possessed, that Norwood engaged in homosexual relations

with teenage boys. While this information certainly could have been used to portray

Norwood in an unfavorable light to the jury, Williams was not precluded from doing so

by governmental interference prior to 2012. See Abu-Jamal, 941 A.2d at 1269 (noting a

PCRA timeliness exception does “not contain the same requirements as a Brady claim,

. . . the exception merely requires that the facts upon which such a claim is predicated

must not have been known to appellant, nor could they have been ascertained by due

diligence[]”) (internal quotations omitted).16 See also Commonwealth v. Morris, 822

A.2d 684, 698 (Pa. 2003) (holding information that was clearly available to [the

a]ppellant at the time of trial cannot be cloaked as a claim of governmental interference

to circumvent the PCRA timeliness requirements).

      Williams made a strategic decision to proceed to trial claiming he did not know

Norwood and did not participate in the murder.        Williams’ decision to pursue an

inaccurate factual recitation for the jury prevented him from exposing a motive based on


16
   Abu-Jamal addressed the appellant’s reasoning in light of both the newly discovered
fact and governmental interference PCRA timeliness exceptions. The Court’s focus
was on the newly-discovered evidence exception; however, the reasoning necessary to
overcome the jurisdictional requirement applies equally to the governmental
interference exception.



                           [J-97A-2016 and J-97B-2016] - 20
his sexual interactions with Norwood. At a minimum, Williams was in possession of his

own knowledge that Norwood had paid him for sexual favors and that the two had a

history of homosexual relations. Williams knew of Norwood’s proclivity for engaging in

sex acts with teenage boys as early as trial, and presented evidence of it throughout the

subsequent proceedings. Williams explicitly acknowledged at the 1998 PCRA hearing

that he was advancing a claim that Norwood was a homosexual ephebophile. N.T.,

4/8/98, at 235. He cannot now claim governmental interference precluded him from

discovering this claim regarding Norwood’s character until Draper gave his affidavit,

when he already asserted the very claim he now raises.17

       Based on the foregoing analysis, and Williams’ previous knowledge of Norwood’s

alleged homosexual ephebophilia, Williams has failed to meet the governmental

interference exception to the PCRA’s timeliness requirements.18 This Court is not to

view the evidence in isolation, but rather our task is to determine if Williams was unable

to present his claim based on the government’s interference, despite his own due

diligence.    For all the reasons set forth in this opinion, I cannot hold that the

government’s interference prevented Williams from presenting evidence of Norwood’s

alleged homosexual ephebophilia. As a result, the PCRA court was without jurisdiction

to consider the merits of Williams’ claim and thus, erred in vacating Williams’ judgment

of sentence and granting him a new penalty phase hearing. Accordingly, the PCRA

court’s September 28, 2012 order should be vacated, and Williams’ sentence of death

reinstated.

17
   It is unclear why Reverend Poindexter was not interviewed by the defense in
preparation for the 1998 hearing as he was a witness at trial in 1986, who testified about
his familiarity with Norwood through St. Luke’s Church.
18
  Because Williams’ petition failed to meet the governmental interference exception, I
need not reach the merits of his Brady claim.



                           [J-97A-2016 and J-97B-2016] - 21
Justice Dougherty joins the Opinion In Support of Reversal.




                    [J-97A-2016 and J-97B-2016] - 22
