Commonwealth v. Hart , 199 A.3d 475 ( 2018 )

J-A21037-18
2018 Pa Super 310
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN HART, :
:
Appellant : No. 792 EDA 2018
Appeal from the PCRA Order Entered February 28, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001012-2005,
CP-23-CR-0004329-2005
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
OPINION BY McLAUGHLIN, J.: FILED NOVEMBER 21, 2018
John Hart appeals from the order dismissing as untimely his petition for
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. Hart maintains that the PCRA court erred in dismissing his petition
without an evidentiary hearing. We vacate and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows. The
Commonwealth’s case against Hart began when it received a letter on
February 14, 2005, from Michael Keenan, an inmate housed at the same
correctional facility as Hart. The letter was addressed to the Delaware County
District Attorney’s Office (“DA’s Office”) and detailed that Keenan was
approached by Hart who “[kept] asking [him] to have someone kill his
girlfriend.” Notes of Testimony (“N.T.”), Discovery Motion Hearing, 3/17/06,
J-A21037-18
at 22. After receiving the letter, the DA’s office assigned Detective Thomas
Worrilow to investigate the matter. Id. at 46-48. Detective Worrilow
interviewed Keenan and charges were filed against Hart for a number of
crimes including “the specific crime of soliciting Michael Keenan” to arrange
the death of Hart’s girlfriend. Id. at 50-51.
Hart’s counsel, Mark Much, Esq., in anticipation of trial, filed a discovery
motion for numerous documents. Relevant to this appeal, he sought “All
letters written to the Delaware County District Attorney or law enforcement
authorities by Michael Keenan relating to the defendant, John Hart.” Omnibus
Pretrial Motion, filed 8/10/05, at 8 ¶ 13 (unpaginated).
At a discovery hearing held on January 10, 2006, the Commonwealth
stated that it “Provided counsel with all of the written materials, written letters
sent by Mr. Keenan to Detective Worrilow relating to this case, or derivatively
related to this case.” N.T., Motion Hearing, 1/10/06, at 10. In response,
Attorney Much explained to the court that he had provided a three-page letter
to the Commonwealth that contained all the discovery he had received at that
point. Id. at 27. The following items were listed regarding Keenan: “16 page
typed statement given by Michael Keenan on March 5, 2005; 4 page writing
submitted to District Attorney by Michael Keenan; 1 page writing prepared by
Michael Keenan with fingerprint analysis; and Michael Keenan’s criminal
record.” Discovery Letter, dated 1/10/06, at ¶¶ 9-12. The court explained that
“All correspondence involving the Commonwealth and the defendant as well
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as all correspondence between Michael Keenan” were discoverable. N.T.,
Motions Hearing, 1/10/06 at 27-28.
On March 2, 2006, during a second discovery hearing, Attorney Much
made an oral motion to suppress all oral and written statements made by
Keenan. N.T., Motions Hearing, 3/2/06, at 6. Counsel explained that the
Commonwealth did not provide “Copies of all letters written to the Delaware
County District Attorney or law enforcement authorities by Michael Keenan,”
as ordered by the trial court. Id. at 6-7. The Commonwealth again assured
the court that it had provided defense counsel, “Any correspondence between
Michael Keenan and the Commonwealth regarding this or other defendants.”
Id. at 28. The court then instructed the Commonwealth to “Double check” its
discovery representations and continued the hearing. Id. at 35-36.
On March 17, 2006, the trial court held a third discovery hearing, and
both Keenan and Detective Worrilow testified. The purpose of the hearing was
to “help identify what was discoverable.” N.T., 3/17/06, Motions Hearing, at
74. Keenan’s relevant testimony included that he did not think he would get
favorable treatment from the Commonwealth or help on his pending criminal
cases when he wrote the February letter. Id. at 20, 22, 41. A portion of
Attorney Much’s cross examination of Keenan consisted of questions to
determine if the February letter was “the only letter.” Id. at 23. Attorney Much
also acknowledged that he received a copy of the February letter. Id. at 23.
Detective Worrilow then testified that he never promised Keenan anything in
return for his information:
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Q: Did you ever offer Michael Keenan anything of value in
exchange for his information that he was giving you?
A: No, sir.
Q: Did you ever make any promises to him about what he would
get in return for his information?
A: No, sir.
Id. at 52. Towards the end of the hearing, the following was discussed:
The Court: Okay. We - - then let’s turn to another issue. That’s
the issue of outstanding discovery in regards to 4329-05. Other
than the information that’s going to be addressed in the
anticipated order that will be forwarded to the prison, are there
any other loose ends, other things that need to be provided to the
defendant?
[Assistant District Attorney (“ADA”)]: Mr. Much and I discussed
this before the motion begin [sic] this morning. You should
understand that there is a large volume of materials that have
been copied and turned over already. And I will agree to an order
that directs the Commonwealth to turn out [sic] over any and all
materials relating to this investigation. And Mr. Much and I agree
that he can craft . . .
The Court: Well, you’ve already told the Court again and again
you’ve done that.
***
Mr. Much: Judge, what [the ADA] and I had discussed before the
hearing was that I was going to go back to my office today,
actually this afternoon, and I was going to have George go
through the discovery that’s been provided. And if we feel that we
are not – we don’t have something then we’re going to identify it
in a letter to [the ADA]. And he’s either going to provide it or give
us a reason why he doesn’t need to or doesn’t . . .
The Court: If there’s a problem the Court needs to be advised
quickly.
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Id. at 101-102, 104-105 (emphasis added). The trial court denied counsel’s
oral motion to suppress on April 4, 2006.
On June 27, 2006, Hart pled guilty to intimidation of witnesses or victims
for his act of soliciting Keenan to kill his girlfriend.1 The same day he also pled
guilty to simple assault and stalking for separate crimes unrelated to the
February letter. Hart did not file a direct appeal. In October 2010, Hart filed
his first pro se PCRA petition. The PCRA court appointed counsel, who filed an
amended petition. The PCRA court denied the petition, and this Court affirmed.
See Commonwealth v. Hart, 63 A.3d 817 (Pa.Super. 2012) (unpublished
memorandum).
On November 17, 2017, PCRA counsel filed the instant petition giving
rise to this appeal. The petition alleged that appellate counsel had uncovered
in the DA’s files four letters from Keenan to Detective Worrilow while the
charges in reference to the February letter were pending against Hart:
On September 19, 2017, while reviewing the contents of the
District Attorney’s file in CP-23-CR-0004329-2005, [Hart]
uncovered four letters which had been written by Michael Keenan
to Detective Worrilow during the pendency of the prosecution of
CP-23-CR-0001012-2005 and CP-23-CR-0004329-2005. The
letters were never produced to Attorney Much or [Hart], but were
uncovered directly from the District Attorney’s file by
happenstance through civil litigation unrelated to the prosecution
of these two cases.
PCRA Petition, filed 11/17/17, at 4 ¶ h (emphasis added).
____________________________________________
1 18 Pa.C.S.A. § 4952(a)(3).
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In the first letter, which is not dated, Keenan states, “I’ll do what I got
to do as far as testafying [sic] but what I want is my probation hearing in front
of Koudelous right along with my case.” Id. at Ex. F-4. In the second letter
dated October 19, 2005, Keenan asks Detective Worrilow, “Please talk to the
DA and find out what the hell is going on with me. My court date is November
22nd and if the DA has no deal for me I plan on telling the judge everything.”
Id. at Ex. F-1. In the third letter dated January 10, 2006, the same date as
the first discovery motion hearing, Keenan states, “You told me that I will
definitly [sic] be going home. You promised and you told me. . . You told me
not to worry, I will be going home.” Id. at Ex. F-2. In the last letter, which is
undated, he wrote in part “You told me a month ago that I would be out in a
couple weeks. . . Let the D.A. cas [sic] explain to Erin [the victim] and her
parents why I didn’t testafy [sic]!” Id. at Ex. F-3.
In its response to the petition, the Commonwealth claimed that “Counsel
Much stated 28 items of discovery were provided [sic] him by the prosecutor
Michael Galantino, Esquire, including Keenan letters.” See Commonwealth’s
Answer to Petition Filed Under the Post-Conviction Relief Act (PCRA), filed
12/8/17, at ¶ 7(b)(c) (citing to Discovery Letter dated 1/10/2006). It also
claimed that Keenan’s letter dated January 10, 2006 was provided to counsel.
Id. at ¶ 9. Hart then filed a reply brief, denying the Commonwealth’s assertion
that Attorney Much received any of the four letters. In a certification from
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Attorney Much attached to the reply brief, Attorney Much expressed the
following:
“I do not recall receiving copies of the four letters attached to this
certification prior to the guilty plea on June 27, 2006. I believe I
first became aware of these letters when they were sent to me by
Conor Wilson, current counsel for Mr.Hart, in November 2017.”
Reply Brief and Answer to New Matter, filed 12/22/17, at Attachment A.
The PCRA court issued notice of its intent to dismiss the petition without
a hearing, concluding that “[n]o genuine issues concerning any material fact
exist and [Hart] is not entitled to post-conviction relief. No purpose would be
served by any further proceedings.” Notice of Intent to Dismiss, dated 1/22/18
at 1 (unpaginated);2 see Pa.R.Crim.P. 907. It also explained that Hart’s
petition was untimely and did not satisfy the “after discovered facts
exception.” Notice of Intent to Dismiss, at ¶ 12. Specifically, “[Hart] has not
alleged why the after discovered evidence at issue here could not have been
discovered between his plea in 2006 and September 19, 2017 . . .” Id. at ¶
26. Additionally, since “[t]wo of the letters attached to the Petition are not
dated . . . this [c]ourt has no way of ascertaining when they were written or
received and could have most certainly been received after the discovery
hearing.” Id. at ¶ 27. Hart replied to the 907 notice, and the PCRA court
dismissed the petition on February 28, 2018. This timely appeal followed.
____________________________________________
2The notice was docketed on January 23, 2018. See CP-23-CR-0004329-
2005.
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On appeal, Hart asks us to review the following issue:
Did the trial court not err in dismissing [Hart’s] Post Conviction
Relief Act petition, which was filed on November 17, 2017, without
conducting an evidentiary hearing in violation of Pa.R.Crim.P.
908(a)(2), where [Hart] raised genuine issues of material fact in
his petition and reply brief, filed December 22, 2017, and
submitted an affidavit of a central witness certifying the factual
discrepancy to be raised at a hearing?
Hart’s Br. at 4.
First, we address the PCRA court’s contention that Hart’s petition was
untimely. See Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.
2017). A petitioner has one year from the date the judgment of sentence is
final to file a first or subsequent PCRA petition, unless a statutory exception
to the one-year deadline applies. See Commonwealth v. Burton, 158 A.3d
618, 701 (Pa. 2017). A judgment of sentence 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.A. § 9545(b)(3).
Beyond a year, a petitioner must plead and prove at least one of the
time-bar exceptions. These exceptions 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
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(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.A. § 9545(b)(1)(i)-(iii). A petitioner must raise the exception within
60 days of the date that the claim could have been raised. See 42 Pa.C.S.A.
§ 9545(b)(2).
Hart’s judgment of sentence became final on July 27, 2006, when the
time to appeal to this Court expired. See Pa.R.A.P. 903. Therefore, any
petition filed by July 27, 2007, would have been timely. Thus, the instant
petition filed a decade later is untimely unless an exception applies. As stated
above, Hart pled the newly discovered facts exception. Hart had until
November 20, 2017, to file a petition based on his assertion that he discovered
the letters on September 17, 2017. See 1 Pa.C.S.A. § 1908 (“Whenever the
last day of such period shall fall on Saturday or Sunday, . . . such day shall be
omitted from the computation.”). The Commonwealth does not dispute that
Hart raised the claim within 60 days of the date on which he could have first
raised it. See Commonwealth’s Br. at 2-20; see also 42 Pa.C.S.A. §
9545(b)(2).
When reviewing the denial of a PCRA petition, this Court’s standard of
review is limited “to whether the PCRA court’s determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Pew, 189 A.3d 486, 488 (Pa.Super. 2018). When reviewing the denial of a
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PCRA petition without an evidentiary hearing, we “determine whether the
PCRA court erred in concluding that there were no genuine issues of material
fact and in denying relief without an evidentiary hearing.” Commonwealth
v. Burton, 121 A.3d 1063, 1067 (Pa.Super. 2015) (quoting Commonwealth
v. Springer, 961 A.2d 1262, 1264 (Pa.Super. 2008)), affirmed, 158 A.3d 618
(Pa. 2017). “[W]hen there are no disputed factual issues, an evidentiary
hearing is not required . . . .” Commonwealth v. Morris, 684 A.2d 1037,
1042 (Pa. 1996). We review the PCRA court’s legal conclusions de novo. See
Burton, 121 A.3d at 1067.
The newly discovered facts exception, Section 9545(b)(1)(ii), relates to
whether a court has jurisdiction to consider an untimely petition. See Burton,
158 A.3d at 629. It does not require a merits analysis. See Commonwealth
v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (holding merits analysis is not
required for newly discovered facts exception). A petitioner satisfies the newly
discovered facts exception when the petitioner pleads and proves that “(1) the
facts upon which the claim [is] predicated were unknown and (2) could not
have been ascertained by the exercise of due diligence.” Bennett, 930 A.2d
at 1272 (citing 42 Pa.C.S.A. § 9545(b)(1)(ii) (emphasis added)). Due
diligence “requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for collateral relief,”
but does not require “perfect vigilance [or] punctilious care.” Burton, 121
A.3d at 1071.
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Here, Hart properly invoked the newly discovered facts exception at
Section 9545(b)(1)(ii). Hart’s petition explained that he did not know of the
existence of these letters and supported this contention with a certification
from his trial counsel. He also asserted that these letters could not have been
ascertained through due diligence as he was granted otherwise-restricted
access to the DA’s office files, in connection with an unrelated civil matter.
See PCRA Petition at 4 ¶ h; see also Reply Br. at ¶ 8. Additionally, he noted
“the Commonwealth represented to the Court that it had turned over to the
defense all letters Michael Keenan wrote” to the DA’s office or law
enforcement. Reply Br. at ¶ 8. Thus, Hart could not be expected to assume
that the Commonwealth may not have been forthright when it reassured him
that no other correspondence existed. See Commonwealth v. Davis, 86
A.3d 883, 890-91 (Pa.Super. 2014) (stating due diligence does not require
defendant to make unreasonable assumptions such as assuming
Commonwealth’s witnesses committed perjury when stating that no deal was
offered to them by the Commonwealth). Moreover, no amount of “reasonable
efforts” to find these letters would have gained him access to the DA’s files as
they are not public records. See, e.g., 65 P.S. § 67.708(b)(16) (“a record of
an agency relating to or resulting in a criminal investigation…” is not a public
record for purposes of Right to Know law).
While the PCRA court concluded that Hart did not present genuine issues
of material fact to warrant an evidentiary hearing, we disagree. Here, it is
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disputed as to whether these letters were given to Hart. The Commonwealth
maintains that the letters were passed on to trial counsel while Hart maintains
that they were not. Thus, there are “disputed factual issues,” regarding these
letters and as a matter of law the court was required to order an evidentiary
hearing. Morris, 684 A.2d at 1042; see Pa.R.Crim.P. 908(A)(2) (the judge
shall order a hearing when a PCRA petition raises material issues of fact).
Therefore, we vacate the order of the court and remand this case for
the PCRA court “acting as fact finder,” to determine whether Hart has met “the
‘proof’ requirement under section 9545(b)(1)(ii),” i.e., whether the letters
were in fact unknown to Hart and whether he exercised due diligence to obtain
the letters. Bennett, 930 A.2d at 1274.3
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
____________________________________________
3 In light of this disposition, we do not address Hart’s remaining claims of an
alleged Brady violation and ineffective assistance of counsel. See Hart’s Br.
at 14, 22.
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