Com. v. Jackson, J. ( 2023 )

J-A26042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN JACKSON :
:
Appellant : No. 552 EDA 2021
Appeal from the PCRA Order Entered February 24, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0203341-2004
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED FEBRUARY 22, 2023
I respectfully dissent. Although I concur in the Majority’s holdings to
the extent that it affirms the PCRA court’s order, I cannot join the Majority’s
conclusion that the allegations presented in the affidavit of Rashan Dixon merit
further proceedings. To the contrary, I would conclude that Appellant has
failed to establish that he acted with the requisite due diligence pursuant to
42 Pa.C.S. § 9545(b)(1)(ii) (requiring a PCRA petitioner to allege and prove
“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”).
The Majority’s analysis understandably focuses upon the PCRA court’s
conclusion that the allegations in Dixon’s affidavit were inadmissible hearsay
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A26042-22
and, consequently, could not satisfy the above-noted timeliness exception.
See Majority Memorandum at 16-21; Trial Court Opinion, 4/1/22, at 18-19.
However, I remain mindful that this Court may affirm the holding of the PCRA
court on any legally valid reason that is supported by the record. See
Commonwealth v. Parker, 249 A.3d 590, 595 (Pa.Super. 2021).
As noted above, my concern arises with respect to the requirements of
§ 9545(b)(1)(ii), which this Court has delineated as follows:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not
have learned the new fact(s) earlier with the exercise of
due diligence. This rule is strictly enforced. Additionally, the
focus of this exception is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known
facts.
Commonwealth v. Fennell, 180 A.3d 778, 782 (Pa.Super. 2018) (emphasis
in original). Even in the context of claims arising pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), a PCRA petitioner invoking § 9545(b)(1)(ii)
bears the responsibility of establishing due diligence. See Commonwealth
v. Porter, 35 A.3d 4, 21-22 (Pa. 2012).
Despite this well-recognized burden of proof, my review of the certified
record reveals that Appellant has remained utterly circumspect concerning the
circumstances under which he: (1) first learned that Dixon possessed allegedly
exculpatory information; and (2) obtained an affidavit attesting to that
-2-
J-A26042-22
information. See Amended Pro Se PCRA Petition, 10/31/19, at 10 (“Rashan
Dixon is an individual who was unknown to [Appellant] who now presents
information pertaining to [Appellant] having personal knowledge of the actual
perpetrators of the crime [Appellant] stands convicted of.”); Supplemental
PCRA Petition, 11/21/19, at ¶ 3 (“On August 23, 2019, [Appellant] received a
signed affidavit from [Dixon.]”). Even viewed charitably, these statements
offer nothing by way of salient details or specifics.
Respectfully, I find such bald averments to be an inadequate basis upon
which to find that Appellant acted with due diligence. In the absence of any
substantive factual discussion by Appellant, this Court can only speculate as
to when and how Appellant first met Dixon, how long they were incarcerated
together before Appellant learned that Dixon possessed exculpatory
information, or what steps, if any, Appellant took in the intervening years to
seek out such evidence and thereby safeguard his rights under the PCRA.
Under the strict interpretation of § 9545(b)(1)(ii) promulgated by our
precedent, I would conclude that Appellant has failed to establish the
existence of due diligence with respect to Dixon’s proffered testimony. See
Porter, supra at 21-22 (finding Brady allegation raised in serial PCRA
petition was untimely and not subject to § 9545(b)(1)(ii) where the petitioner
“offered no explanation of why, with the exercise of due diligence, the
information . . . could not have been discovered” in years-long gap between
conviction and revelation). Thus, I would affirm the PCRA court in toto.
-3-
J-A26042-22
Based on the foregoing, I respectfully dissent as to the holding regarding
Dixon’s affidavit. In all other respects, I join the learned Majority.
-4-