                                 [J-98-2017]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

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


COMMONWEALTH OF PENNSYLVANIA,               :   No. 735 CAP
                                            :
                     Appellee               :   Appeal from the Order dated January
                                            :   31, 2017, entered on February 2, 2017
                                            :   in the Court of Common Pleas, Blair
              v.                            :   County, Criminal Division at No. CP-07-
                                            :   0001850-2005.
                                            :
ANDRE STATON,                               :   SUBMITTED: December 21, 2017
                                            :
                     Appellant              :


                                       OPINION


JUSTICE MUNDY                                                 DECIDED: May 24, 2018
       Appellant, Andre Staton, appeals from the February 2, 2017 order of the Court of

Common Pleas of Blair County, dismissing as untimely, his petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After

careful review, we affirm.

       This Court has previously recited the underlying facts of Staton’s case in our

opinions disposing of his direct appeal, as well as his first PCRA appeal. See generally

Commonwealth v. Staton, 38 A.3d 785 (Pa. 2012) (Staton I); Commonwealth v. Staton,

120 A.3d 277 (Pa. 2015) (Staton II), cert. denied, 136 S. Ct. 807 (2016).       For the

purposes of the instant appeal, we summarize the relevant underlying factual and

procedural history as follows.
         Sometime in 2003, Staton began dating the victim, Beverly Yohn. In the fall of

2003, one of Beverly’s friends observed injuries on her person.1 Later on, in January

2004, Beverly called the local police, asserting that Staton had attacked her. Beverly

obtained a temporary protection from abuse (PFA) order against Staton on January 27,

2004, and a final PFA order on February 19, 2004.

         On the morning of February 25, 2004, Beverly and her three sons were staying at

the home of Penny Lantz, Beverly’s mother. Lantz had left the house to go to work.

One of Beverly’s sons, Justin Yohn, was outside starting the car for her to take him to

school, when he saw Staton rush up to the house. Staton told Justin to keep quiet, and

Staton kicked in the back door. Jeremy Yohn, also Beverly’s son, was in the kitchen.

Jeremy observed his mother lock the back door, but shortly afterwards saw Staton kick

the door down and enter the kitchen. Jeremy saw Staton pull a knife out of his jacket

and watched Staton stab Beverly until she collapsed onto the floor. Staton ran out of

the house through the same back door, threw Justin out of the car he had started, and

drove away in it.     Beverly was taken to Altoona Hospital Trauma Center and was

pronounced dead later that day.

         Staton was apprehended, and the Commonwealth filed an information on

October 6, 2005, charging him with one count each of criminal homicide, burglary,

criminal trespass, theft by unlawful taking, and receiving stolen property, as well as two

counts of aggravated assault. Staton proceeded to a jury trial, at the conclusion of

which, the jury convicted him of all charges, with the criminal homicide graded as first-

degree murder. At the penalty phase, the jury found two aggravating factors and four

mitigating factors, but concluded the aggravating factors outweighed the mitigating


1   We refer to members of the Yohn family by their first names to avoid confusion.



                                       [J-98-2017] - 2
factors, and returned a death sentence, which the trial court formally imposed on June

1, 2006. Staton filed a timely post-sentence motion, which the trial court denied. This

Court affirmed the judgment of sentence on February 21, 2012. See Staton I, 38 A.3d

at 796. Staton did not seek a writ of certiorari from the Supreme Court of the United

States.

      On May 9, 2012, Staton filed a timely pro se PCRA petition. On May 11, 2012,

the PCRA court appointed counsel, Timothy Burns, Esquire. Petitioner filed an

amended pro se PCRA petition on August 20, 2012.          On May 13, 2013, the parties

appeared before the PCRA court. At this proceeding, the parties discussed Staton’s

then-pending motion to proceed pro se. Both Attorney Burns, and the Commonwealth

opposed the motion on several grounds.          Staton voiced his continued desire to

represent himself, and his dissatisfaction with Attorney Burns’ representation.       The

PCRA court denied Staton’s motion to proceed pro se. As the PCRA court hearing

drew to a close, Staton got up from his chair and swung at Attorney Burns. Staton

struck Attorney Burns in the head, causing him to be temporarily unconscious. Attorney

Burns suffered a severe concussion and was taken to a nearby hospital.2

      On May 28, 2013, the PCRA court entered an order and opinion. Therein, the

PCRA court vacated its order appointing Attorney Burns in light of the assault, and

further concluded Staton had waived his right to counsel under Pennsylvania Rule of

Criminal Procedure 904(H)(1). The PCRA court further stated it had reviewed all of

Staton’s issues in his August 20, 2012 amended pro se petition and concluded no

issues of material fact existed. It therefore notified Staton of its intent to dismiss his


2The Commonwealth separately charged Staton with various offenses arising from this
assault, for which he was eventually convicted and sentenced to an additional five to ten
years’ imprisonment.



                                     [J-98-2017] - 3
petition without a hearing and explained why none of his claims entitled him to relief.

See generally Pa.R.Crim.P. 909(B)(2)(a). Staton filed a timely pro se response. On

September 25, 2013, the PCRA court entered an order denying Staton’s PCRA petition.

Petitioner filed a timely notice of appeal to this Court.

        This Court affirmed on July 20, 2015. Relevant to the instant appeal, this Court

concluded that Staton had not waived his right to counsel, but rather forfeited his right to

counsel.    We explained that wavier of a right involves intentional or voluntary

abandonment of a right, whereas forfeiture involves serious or dilatory conduct, even if

one did not intend to abandon the right. Staton II, 120 A.3d at 286 (citation omitted).

We concluded that Staton’s unprovoked attack on Attorney Burns constituted “extremely

serious conduct” that met the threshold of forfeiting his right to PCRA counsel, and the

PCRA court did not err in proceeding to adjudicate the merits of Staton’s amended pro

se petition. Id. This Court then rejected Staton’s remaining six issues. The Supreme

Court of the United States denied Staton’s petition for a writ of certiorari on January 11,

2016.

        On February 22, 2016, Staton filed the instant pro se PCRA petition. Therein,

Staton alleged that he had been deprived of “a full, fair, adequate, and properly

amended first PCRA petition.”        Staton’s Second PCRA Petition, 2/22/16, at ¶ 3.

Specifically, Staton alleged that on December 23, 2015, he reviewed a counseled

pleading filed on his behalf in his federal habeas proceeding, in which he purportedly

learned for the first time that Attorney Burns never filed an amended first PCRA petition

on his behalf. Id. at ¶ 50. In his view, this deprived him of his constitutional rights

insofar as he did not have an opportunity to be heard on the merits of his previous state

and federal constitutional claims. Id. at ¶ 51.




                                       [J-98-2017] - 4
        As to timeliness, Staton acknowledged his petition was facially untimely, but

alleged that the newly-discovered fact time-bar exception applied. Id. at ¶ 55. He also

alleged that he had complied with the 60-day rule at Section 9545(b)(2).           Id. The

alleged newly-discovered fact was that the PCRA court had adjudicated his August 20,

2012 pro se amended PCRA petition on the merits. Id. In Staton’s view, his own filing

violated the rule against hybrid representation, since at the time of filing, Attorney Burns

was still counsel of record. Id. Therefore, Staton believed that the PCRA court should

not have gone forward with the merits of his August 20, 2012 petition.

        Staton filed an amended pro se petition on February 29, 2016, which consisted of

an affidavit from Donte Thomas, a fellow prisoner who had been helping Staton with his

case.       Relevant to this appeal, the affidavit stated that Thomas first learned on

December 24, 2015 that the PCRA court had dismissed Staton’s prior pro se PCRA

petition.

        On November 7, 2016, the PCRA court entered an order dismissing the petition

as untimely filed. Staton filed a counseled motion for reconsideration on November 22,

2016, asserting that the PCRA court erred in not giving notice of intent to dismiss under

Rule 909(B)3 On November 29, 2016, the PCRA court entered an order vacating its

November 7, 2016 dismissal order, and gave the appropriate Rule 909(B)(1) notice.

Therein, the PCRA court explained that the instant petition was untimely on its face, and

Staton failed to adequately prove an exception to the PCRA time-bar applied.

        Staton filed a counseled response to the PCRA court’s Rule 909 notice on

December 13, 2016. Therein, Staton argued for the first time that the governmental

interference time-bar exception also applied.      Staton alleged that the PCRA court

3Current counsel on appeal is the same attorney who filed Staton’s reconsideration
motion. Counsel entered his appearance that same day.



                                      [J-98-2017] - 5
interfered with his ability to fully present his claims for his first PCRA petition due to its

failure to appoint competent counsel to represent him. Staton’s Response, 12/13/16, at

5. In addition, he also alleged the newly-discovered fact exception applied, insofar that

trial counsel, Donald Speice, Esquire, had an undisclosed conflict of interest. Id. at 6.

Specifically, Staton alleged that Attorney Speice and others in the public defender’s

office, of which Attorney Speice was an employee, had previously represented a

Commonwealth witness, Dennis Johnson, in other criminal matters. Id. Staton also

alleged the newly-discovered fact exception applied to certain instances of alleged

ineffective assistance by Attorney Burns before he was discharged from representing

Staton. Id. The response also attached an amended PCRA petition, which raised 45

alleged instances of trial counsel ineffectiveness, direct appeal counsel ineffectiveness,

and trial court error. On February 2, 2017, the PCRA court entered an order dismissing

Staton’s second PCRA petition as untimely filed. On March 1, 2017, Staton filed a

timely notice of appeal.

       “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. Mason, 130 A.3d 601, 617 (Pa.

2015) (citation omitted). We view the record in the light most favorable to the prevailing

party in the PCRA court. Id. We are bound by any credibility determinations made by

the PCRA court where they are supported by the record. Id. However, we review the

PCRA court’s legal conclusions de novo. Id.

       As this Court has often noted, the PCRA time-bar is jurisdictional in nature.

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016). “The PCRA requires that a

petition seeking relief thereunder must be filed within one year of the date the

petitioner's judgment of sentence becomes final.” Id. (citations omitted). Under the




                                       [J-98-2017] - 6
PCRA, “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.”        42 Pa.C.S.

§ 9545(b)(3).

      The parties do not dispute that Appellant’s judgment of sentence became final on

May 21, 2012, when Staton’s time to file a petition for a writ of certiorari with the

Supreme Court expired. Staton’s petition is therefore facially untimely, but he avers it

was timely under either the governmental interference or newly-discovered fact

exception to the time-bar. We address each exception separately.4

      We begin with the governmental interference exception. Staton claims that the

PCRA court committed government interference by not appointing “competent” counsel

as required by the Rules of Criminal Procedure. Staton’s Brief at 25. In his view, this is

“regardless of whether he later waived or forfeited his right to counsel.” Id. Therefore,

Staton avers the PCRA court’s failure in this regard deprived him of “a meaningful

opportunity to present his claims during the [f]irst PCRA proceeding.”          Id.   The

Commonwealth counters that it was Staton, not the PCRA court, who interfered with

Staton’s representation.      Commonwealth’s Brief at 31-35.            Specifically, the

4 We observe that some of Staton’s time-bar exception arguments were not raised in
the PCRA petition itself, but rather were raised for the first time in his counseled
response to the PCRA court’s notice of intent to dismiss. This Court has stated that the
text of the PCRA requires any exception be raised in the petition itself. Commonwealth
v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005) (stating that the defendant “was required to
plead the cognizability of his petition in the petition itself”); see also 42 Pa.C.S. §
9545(b)(1)(i) (providing that any petition shall be filed within one year of the date the
judgment becomes final “unless the petition alleges and the petitioner proves that” one
of the enumerated exceptions to the PCRA time-bar applies). Further, Staton was not
granted leave to amend his PCRA petition to include additional exceptions to the PCRA
time-bar. Nevertheless, the PCRA court addressed all of Staton’s arguments in this
regard. Accordingly, to the extent Staton contends the PCRA court erred in its
resolution of such arguments, we shall address them.



                                     [J-98-2017] - 7
Commonwealth’s brief reviews the record and points to various instances where Staton

“attempt[ed] to thwart counsel’s representation of him[.]” Id.

       The governmental interference exception permits an otherwise untimely PCRA

petition to be filed if it pleads and proves that “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[.]” 42 Pa.C.S. § 9545(b)(1)(i). In other words, Staton is required to

show that but for the interference of a government actor “he could not have filed his

claim earlier.” Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).

       We also observe that the Pennsylvania Rules of Criminal Procedure include a

rule-based right to counsel. Rule 904(H)(1) requires the PCRA court to automatically

appoint counsel for the purposes of collateral review after the record is remitted at the

end of any direct appeal proceedings. Pa.R.Crim.P. 904(H)(1). The PCRA court’s

appointment is effective through any PCRA appeal proceedings unless it is forfeited or

waived, and the litigant proceeds pro se. Id. at 904(H)(2)(b).

       After careful review, we conclude Staton’s governmental interference argument

lacks merit. The record demonstrates that Staton did have competent PCRA counsel

appointed to represent him during the first PCRA proceedings. After Attorney Burns’

appointment, Staton tried to proceed pro se, and when the PCRA court refused to

permit Staton to represent himself, he assaulted Attorney Burns in open court. Staton

II, 120 A.3d at 282. By forfeiting his right to counsel, Staton’s then-pending amended

pro se petition was properly before the PCRA court, was not barred by any hybrid

representation concerns, and thus his August 20, 2012 pro se PCRA petition was the

pending petition in the PCRA court. As this Court held in Staton’s previous appeal, the

PCRA court properly adjudicated Staton’s August 20, 2012 pro se petition on the merits.




                                      [J-98-2017] - 8
Id. at 286.     Based on these considerations, we conclude Staton’s governmental

interference argument does not render his instant PCRA petition timely.

       We now turn to Staton’s arguments pertaining to the newly-discovered fact time-

bar exception. This time-bar exception permits an otherwise untimely PCRA petition to

be filed if it pleads and proves that “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[.]”   42 Pa.C.S. § 9545(b)(1)(ii).   As this Court recently explained, “[w]hen

considering a claim seeking to invoke section 9545(b)(1)(ii), the petitioner must

establish only that (1) the facts upon which the claim was predicated were unknown and

(2) they could not have been ascertained by the exercise of due diligence.” Cox, 146

A.3d at 227. This does not require any merits analysis of the underlying claims for

relief. Id. Our cases have stated that to qualify as a new fact, “the information may not

be part of the public record.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013)

(citation omitted), cert. denied, 134 S. Ct. 639 (2013). In addition, the item must “not

merely [be] a newly discovered or newly willing source for previously known facts.” Id.

(internal quotation marks and citation omitted). Furthermore, this Court has 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.” Cox, 146 A.3d at 230 (quoting Edmiston, 65 A.3d at 348).

       In this case, Staton raises three alleged newly-discovered facts. First, Attorney

Burns’ alleged ineffective assistance of counsel during the first round of collateral

review. Second, trial counsel’s purported conflict of interest. Third, that the PCRA court

“improperly adjudicated” his August 20, 2012 pro se petition because it was a nullity due

to the bar against hybrid representation.      We address each argument separately.

       Staton’s first alleged newly-discovered fact is Attorney Burns’ alleged ineffective




                                      [J-98-2017] - 9
assistance of counsel during the adjudication of his first PCRA petition. Specifically,

Staton claims Attorney Burns never met with him or filed an amended PCRA petition,

despite the PCRA court ordering him to do so. Staton’s Brief at 29. Staton raises the

nebulous claim that he did not previously learn of this “fact” because he did not “know

about [Attorney Burns’] errors until counsel committed them[5] long after [Staton’s]

judgment of sentence became final.” Id. Staton cites our decision in Commonwealth v.

Bennett, 930 A.2d 1264 (Pa. 2007) in support of his position. The Commonwealth

maintains that Attorney Burns was not ineffective and Staton caused his own forfeiture

of counsel by assaulting Attorney Burns. Commonwealth’s Brief at 37-38.

      In Bennett, we held the fact that Bennett’s previous appellate counsel abandoned

him by not filing a brief in the Superior Court, which resulted in the dismissal of his

appeal, could generally qualify as a newly-discovered fact as a matter of law. Bennett,

930 A.2d at 1274. We did not decide whether Bennett specifically had satisfied his

burden under Section 9545(b)(1)(ii) because this “require[d] further fact-finding” as to

due diligence. Id. On remand, we instructed the PCRA court to decide in the first

instance   “whether Appellant met the ‘proof’ requirement under 42 Pa.C.S.

§ 9545(b)(1)(ii)” as to whether the fact of abandonment was “unknown” and whether

Bennett had exercised due diligence. Id.

      Turning back to this case, we conclude that Bennett is of no assistance to Staton

in the instant matter. Attorney Burns never abandoned Staton. To the contrary, Staton

wished to fire Attorney Burns and represent himself, and when that request was not

allowed, he forfeited Attorney Burns’ further representation by assaulting him. Staton II,

120 A.3d at 282, 286. We also point out that in Commonwealth v. Gamboa-Taylor, 753

5We assume that Staton means that current counsel did not advise Staton of Attorney
Burns’ alleged ineffectiveness until long after his judgment of sentence became final.



                                    [J-98-2017] - 10
A.2d 780, 785 (Pa. 2000), this Court definitively stated that “claims of PCRA counsel's

ineffectiveness do not escape the PCRA one-year time limitation merely because they

are presented in terms of current counsel's discovery of the ‘fact’ that a previous

attorney was ineffective.” Gamboa-Taylor, 753 A.2d at 786. Therefore, Staton cannot

meet his burden under Section 9545(b)(1)(ii) in this regard. See Cox, 146 A.3d at 227.

      Staton next avers that his instant petition is timely because he discovered that

trial counsel, Donald Speice, had a purported conflict of interest involving a

Commonwealth witness, Dennis Johnson. In this regard, Staton lists two Common

Pleas docket numbers where Johnson pled guilty in August 2002 to one count of

possession with intent to deliver at CP-07-CR-335-2002 and pled guilty to one count of

possession of marijuana in April 2002 at CP-07-CR-754-2002.6 No appeals were filed

in either case, so the judgments of sentence became final before the instant homicide

even occurred.

      In his brief, Staton claims that he learned about the alleged new facts sometime

in May 2016, and baldly cites to the Superior Court’s opinion in Commonwealth v.

Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc), aff’d, 158 A.3d 618 (Pa. 2017). In

Burton, this Court held that for purposes of the newly-discovered fact exception and the

60-day rule, “the presumption that information of public record cannot be considered

‘unknown’ for purposes of proving the newly-discovered facts exception . . . does not

apply to pro se prisoner petitioners.” Burton, 158 A.3d at 620.



6The Commonwealth acknowledges in a footnote to its brief that Johnson had two other
criminal docket numbers at CP-07-CR-262-1999 and CP-07-CR-1423-2001. Johnson
was represented by a member of the public defender’s office in at least one of those two
cases. The Commonwealth has also attached to its brief filed in this Court a filing from
Johnson’s case at CP-07-CR-754-2002. See Commonwealth’s Brief at Exhibit 4. The
sheet lists Attorney Speice as Johnson’s counsel. Id.



                                    [J-98-2017] - 11
       In our view, Staton is not entitled to relief. Johnson’s docket sheets, which list

trial counsel for each case, were public records as far back as 2002.          The trial in

Staton’s case took place in 2006, and direct appeal proceedings concluded in 2012.

Even though Staton forfeited his right to PCRA representation by assaulting Attorney

Burns in open court, by the time his first PCRA appeal was reviewed by this Court,

Staton was represented by a private attorney, Teri B. Himebaugh, Esquire. See Staton

II, 120 A.3d at 283 n.8. Therefore, although Staton initially filed the instant petition pro

se, as explained above, unlike Burton, he has been represented by various attorneys at

various points in the last decade.

       In addition, Burton only pertains to the part of Section 9545(b)(1)(ii) relating to

whether the facts were “unknown.”         This Court stressed that the due diligence

requirement is separate and distinct from the discrete issue addressed in Burton. See

Burton, 158 A.3d at 638 (stating, “[a]fter the PCRA court makes a determination as to

the petitioner's knowledge, it should then proceed to consider whether, if the facts were

unknown to the petitioner, the facts could have been ascertained by the exercise of due

diligence, including an assessment of the petitioner's access to public records.”)

(emphasis added). Based on these considerations, we conclude Staton has not met his

burden to show he could not have learned of these facts earlier with the exercise of due

diligence.

       Staton’s third alleged newly-discovered fact is that the PCRA court wrongly

adjudicated his August 20, 2012 pro se PCRA petition on its merits. In this vein, Staton

argues that the entire petition was a legal nullity, because when he filed it, he violated

Pennsylvania’s prohibition against hybrid representation. Staton’s Brief at 30. Staton

continues that he did not “discover this error until December 23, 2015, when he




                                     [J-98-2017] - 12
reviewed a pleading filed by the Federal Public Defender’s Office [in his federal habeas

proceeding] that discussed this fact.” Id.

       Our cases have consistently stated that “no defendant has a constitutional right

to hybrid representation, either at trial or on appeal.” Commonwealth v. Blakeney, 108

A.3d 739, 762 (Pa. 2014), cert. denied, 135 S. Ct. 2817 (2015). Pennsylvania Rule of

Criminal Procedure 576(A)(4) further states that when a represented defendant

“submits for filing a written motion, notice, or document that has not been signed by the

defendant's attorney, the clerk of courts shall accept it for filing, time stamp it with the

date of receipt and make a docket entry reflecting the date of receipt, and place the

document in the criminal case file.” Pa.R.Crim.P. 576(A)(4). The Rule continues that

“[a] copy of the time stamped document shall be forwarded to the defendant's attorney

and the attorney for the Commonwealth within 10 days of receipt.” Id.

       In this case, even assuming arguendo, that the prohibition against hybrid

representation initially prevented adjudication of Staton’s August 20, 2012 pro se

petition, as we have already held, subsequent events lifted any prohibition. After Staton

filed his August 20, 2012 pro se petition, on May 13, 2013, Staton tried to represent

himself and then assaulted his counsel after the PCRA court denied his request. Staton

II, 120 A.3d at 282. This Court has already held that Staton forfeited his right to counsel

based on his conduct. Id. at 286. Therefore, after Staton’s forfeiture, he was no longer

represented. Id. at 286. At that moment, any possible hybrid representation bar to his

August 20, 2012 pro se petition ceased to exist. Therefore, this cannot constitute a

newly-discovered fact for the purposes of Section 9545(b)(1)(ii). See Cox, 146 A.3d at

227.




                                     [J-98-2017] - 13
      Based on the foregoing, we hold that none of Staton’s time-bar exception

arguments warrant relief.7    We therefore conclude that the PCRA court correctly

determined that it lacked jurisdiction to adjudicate the merits of Staton’s petition.

Accordingly, the order of the Court of Common Pleas of Blair County is affirmed. The

Prothonotary is directed to transmit a copy of the record and this opinion to the

Governor pursuant to 42 Pa.C.S. § 9711(i).



Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Wecht join the

opinion.



Justice Todd concurs in the result.




7Because we conclude that none of Staton’s time-bar arguments have any merit, we
need not address his argument regarding the sixty-day rule at Section 9545(b)(2).



                                      [J-98-2017] - 14
