Com. v. Burton, S.

J-E04008-14
2015 Pa. Super. 176
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN LAMAR BURTON,
Appellant No. 1459 WDA 2013
Appeal from the PCRA Order August 27, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CR-02-CR-0004017-1993
and CP-02-CR-0004276-1993
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, SHOGAN, MUNDY, OLSON AND OTT, JJ.
DISSENTING OPINION BY OLSON, J.: FILED AUGUST 25, 2015
I respectfully dissent. The learned Majority holds that the trial court’s
order denying collateral relief must be vacated and that this case should be
remanded for an evidentiary hearing on whether Appellant properly invoked
the newly-discovered facts exception to the one-year time bar under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 To reach
____________________________________________
1
The Majority concludes that Appellant properly invoked the
newly-discovered facts exception and foregoes consideration of Appellant’s
alternate claim that he validly asserted the governmental interference
exception. See Majority Opinion at 4, n.1. As I believe that Appellant failed
to plead and prove that the newly-discovered facts exception applies, I
would address Appellant’s government interference claim and hold that it is
meritless.
(Footnote Continued Next Page)
J-E04008-14
this result, the Majority holds that all pro se petitioners are exempt from the
“public records” rule, which presumes that a petition invoking the
newly-discovered facts exception to the PCRA’s one-year time bar must be
filed within 60 days of the date that the information entered the public
domain. This reinterpretation of our Supreme Court’s long-standing public
information doctrine is unwarranted. The Majority’s subjective, status-based
approach to assessing due diligence wrongly classifies petitioners, like
Appellant, according to who they are, while at the same time fails to
consider what they do to acquire supposedly new facts. In addition, the
Majority’s new approach improperly shifts the burdens of pleading and proof
_______________________
(Footnote Continued)
Appellant’s governmental interference claim asserts that the contents of
Melvin Goodwine’s expungement motion constitutes exculpatory evidence
that the Commonwealth improperly withheld from him in violation of Brady
v. Maryland, 373 U.S. 83 (1963). Appellant, however, does not contend
that the Commonwealth had exclusive control over the information found in
Goodwine’s motion papers or that the Commonwealth denied him access to
this information until recently. Moreover, since Goodwine filed his motion
with the Allegheny County Department of Court Records, it was equally
available to Appellant and the Commonwealth once it entered the public
domain. Consequently, Appellant cannot establish that interference by
governmental officials frustrated any previous effort to assert a claim for
collateral relief. See Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008) (although Brady violation may fall within governmental
interference exception, petitioner still must plead and prove that his failure
to previously raise the claim was the result of interference by government
officials); Commonwealth v. Chester, 895 A.2d 520, 523-524 (Pa. 2006).
Because, in my view, Appellant’s petition is untimely and no exception
applies, I conclude that the PCRA court correctly declined to review the
substantive merit of Appellant’s collateral claims.
-2-
J-E04008-14
on collateral review to the Commonwealth, without interpretive guidance as
to how any recently recognized “subjective considerations” factor into the
due diligence inquiry. Lastly, as I shall explain below, the circumstances of
this case were more than sufficient to trigger an investigation by Appellant.
Thus, I believe that the Majority’s broad, unprecedented, and unworkable
exception to settled Supreme Court precedent constitutes a sharp and
improper departure from settled law. For each of these reasons, I would
affirm the denial of collateral relief in this case since I believe that prevailing
Pennsylvania precedent firmly supports the PCRA court’s dismissal order.
I begin with a review of the PCRA court’s determinations and the
undisputed legal principles that govern this case. The PCRA court rejected
the claim that the contents of Goodwine’s motion were unknown to
Appellant. See PCRA Court Opinion, 11/4/13, at 5. In addition, the court
rejected Appellant’s argument that his May 2013 receipt of the Pennsylvania
Innocence Project’s letter triggered the 60-day period referenced in
§ 9545(b)(2). Id. Instead, the court concluded that the 2009 filing of
Goodwine’s motion, and its concomitant entry into the public domain,
triggered § 9545(b)(2)’s 60-day period governing the time within which a
petition invoking a timeliness exception must be submitted. See id. (“Given
the specific facts and circumstances of this case, there is no reasonable
argument that the purported exculpatory evidence contained in Goodwine’s
[m]otion could not have been discovered at least by 2009 if not earlier.”).
-3-
J-E04008-14
The Commonwealth defends this conclusion, pointing out that facts which
are a matter of public record may not be considered “unknown” for purposes
of the newly-discovered facts exception to the PCRA’s time-bar. See
Commonwealth’s Brief at 15 and 21. In my view, the PCRA court’s legal
conclusions, and the Commonwealth’s position on appeal, find ample support
within our appellate case law.
To succeed in pleading and proving a timeliness exception under
§ 9545(b)(1)(ii),2 Appellant must demonstrate that “the facts upon which
[his] claim is predicated were unknown to [him] and could not have been
____________________________________________
2
Because Appellant’s petition is manifestly untimely, it is subject to
dismissal unless Appellant pleads and proves one of the following three
statutory exceptions:
(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
(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). Additionally, any petition invoking an
exception provided in 42 Pa.C.S. § 9545(b)(1) must be filed within 60 days
of the date that the claim could have been presented. 42 Pa.C.S.A.
§ 9545(b)(2).
-4-
J-E04008-14
ascertained by the exercise of due diligence.” 42 Pa.C.S.A.
§ 9545(b)(1)(ii) (emphasis added). “Due diligence demands that the
petitioner take reasonable steps to protect his own interests. A
petitioner must explain why he could not have learned of the new
fact(s) earlier with the exercise of due diligence. This rule is strictly
enforced.” Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011)
(citations omitted) (emphasis added), appeal denied, 50 A.3d 121 (Pa.
2012). Moreover, a petitioner seeking to invoke an exception set forth in 42
Pa.C.S.A. § 9545(b)(1) must file his petition within 60 days of the date that
the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “[T]he
60–day rule requires a petitioner to plead and prove that the information on
which he relies could not have been obtained earlier, despite the exercise of
due diligence.” Commonwealth v. Williams, 105 A.3d 1234, 1239-1240
(Pa. 2014). Because the PCRA’s jurisdictional time limits go to a court's
competency to adjudicate a controversy, the statute “confers no authority
upon [courts] to fashion ad hoc equitable exceptions to the PCRA time-bar in
addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Hackett, 956 A.2d 978, 983-984 (Pa. 2008).
Where a petitioner relies on public information to establish the
newly-discovered facts exception found in § 9545(b)(1)(ii), appellate courts
within this Commonwealth have repeatedly and consistently held that he
must file his petition within 60 days from the emergence of a “fact” into the
-5-
J-E04008-14
public domain. Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013)
(information reflecting potential conflict of interest on the part of defense
counsel was on file with clerk of courts ten years before defendant was
convicted and 27 years before relevant PCRA petition was filed; therefore,
information was publicly available and newly-discovered facts exception did
not apply); Commonwealth v. Lopez, 51 A.3d 195, 198 (Pa. 2012) (per
curiam) (information related to defense counsel’s disciplinary issues was
publicly available seven years before defendant’s trial and 23 years before
second PCRA petition; thus, newly-discovered facts exception did not apply);
Chester, 895 A.2d at 523 (trial counsel’s arrest for driving under the
influence was a matter of public record ten years before defendant’s second
petition and, therefore, not “unknown” for purposes of newly-discovered
facts exception); Commonwealth v. Feliciano, 69 A.3d 1270, 1278 (Pa.
Super. 2013) (noting, by way of alternate holding, that information relating
to suspension of trial counsel's license to practice law did not constitute a
newly-discovered fact since information was publicly available 11 years
before defendant filed PCRA petition).
This line of cases establishes beyond doubt that “matters of public
record [such as docketed trial court filings] are not unknown” and thus
“[do] not meet the requirement [that] the information be unknown at the
time the petition was filed” for purposes of the newly-discovered facts
exception. See e.g. Taylor, 67 A.3d 1248-1249 (emphasis added). Thus,
-6-
J-E04008-14
where public information is cited as the basis for invoking § 9545(1)(ii), our
Supreme Court’s objective interpretation of the newly-discovered facts
exception leaves no room for concepts of relaxed vigilance or diminished
diligence, even if long periods have elapsed between public disclosure and
conviction, direct appeal, or a petition for collateral relief. Indeed, because a
PCRA petitioner carries the burden to plead and prove that a timeliness
exception applies, a fair reading of the case law clearly requires a petitioner
to comb, regularly and routinely, through public sources in order to locate
potentially exculpatory materials and come forward with a detailed
explanation as to why an untimely request for collateral relief should be
addressed. See Williams, 35 A.3d at 53 (espousing strict enforcement of
the petitioner’s duty to employ due diligence to protect his interests and
requiring explanation as to why new facts could not have been uncovered
earlier).3
____________________________________________
3
The Majority’s opinion attempts to sidestep this binding precedent by
suggesting that “th[is] rule is not absolute” and that “[i]t must adhere to the
statutory language of Section 9545[, which requires that the facts be]
‘unknown to the petitioner.’” Majority Opinion at 15 (emphasis in original),
quoting 42 Pa.C.S.A. § 9545(b)(1)(ii). The suggestion that our Supreme
Court’s unambiguous declarations somehow excluded PCRA petitioners does
not withstand scrutiny. As even the learned Majority acknowledges, Taylor
squarely held that “matters of public record are not unknown.” Majority
Opinion at 15, quoting Taylor, 67 A.3d at 1248. I submit that this clear and
unequivocal holding means that public records are not unknown to anyone,
particularly PCRA petitioners (pro se and represented alike). To whom,
apart from PCRA petitioners such as Appellant, could the Supreme Court
have been referring in formulating this rule? Rather than applying the
(Footnote Continued Next Page)
-7-
J-E04008-14
The undisputed facts in this case lead inexorably to the conclusion that
Appellant failed to invoke the newly-discovered facts exception. Goodwine
filed his expungement motion with the Allegheny County Department of
Court Records in 2009. Four years passed before Appellant filed the instant
PCRA petition on July 11, 2013. Appellant nowhere specifies what steps he
took to uncover any newly-discovered facts. Hence, Appellant’s failure to
file his petition within 60 days of the date that the alleged exculpatory
material entered the public sphere defeats his attempt to invoke the
exception found at § 9545(b)(1)(ii).
The Majority does not, and cannot, dispute these uncontested facts.
Indeed, the Majority acknowledges that Appellant’s claim appears to conflict
with traditional applications of the Supreme Court’s public records rule. See
Majority Opinion at 14. Instead of applying well-settled precedent, however,
the Majority formulates an exception for pro se petitioners that threatens to
swallow this deeply rooted principle. To invoke the exception found at
§ 9545(b)(1)(ii), the Majority first points out that due diligence “is
_______________________
(Footnote Continued)
established rule in this case, the Majority carves out an exception for pro se
petitioners in all cases going forward, reasoning that a subjective component
is part and parcel of the standard of diligence. Nevertheless, the “subjective
element” that the Majority injects into our due diligence inquiry, which it
amorphously describes as “easily accommodated by a reasonableness
analysis, but not accurately reflected by a bright line rule” (Majority Opinion
at 15), represents a clear departure from settled PCRA jurisprudence that
has consistently espoused objective criteria when interpreting
§ 9545(b)(1)(ii).
-8-
J-E04008-14
fact-sensitive and dependent upon the circumstances.” Majority Opinion at
12. The Majority reasons that, in assessing Appellant’s diligence, we must
consider several factors, including the passage of time between the finality
of Appellant’s judgment of sentence and the filing of Goodwine’s motion,
Appellant’s incarcerated and pro se status, and the contention that Appellant
had no reason to initiate a search for exculpatory evidence. In the Majority’s
view, pro se petitioners occupy a special position and are now exempt in all
cases from our Supreme Court’s public records rule since they “do[] not
have access to information otherwise available to the public” and lack the
connection to public documents that retained or appointed counsel could
provide. Id. at 16. The Majority concludes that, because pro se prisoners
are no longer members of the public, “the presumption of access to
information in the public domain does not apply where the untimely PCRA
petitioner is pro se.” Id. at 17-18. Applying this newly-minted standard,
the Majority finds that Appellant may have exercised due diligence. Id. at
18.
For several reasons, I am unable to agree with this approach. As a
preliminary matter, under Pennsylvania Rule of Criminal Procedure 907, the
PCRA court has the discretion to dismiss a petition without a hearing when
the court is satisfied “that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction collateral relief,
and no legitimate purpose would be served by any further proceedings.”
-9-
J-E04008-14
Pa.R.Crim.P. 907(1). To obtain reversal of a PCRA court's decision to
dismiss a petition without a hearing, an appellant must show that he raised
a genuine issue of fact which, if resolved in his favor, would have entitled
him to relief, or that the court otherwise abused its discretion in denying a
hearing. Commonwealth v. Paddy, 15 A.3d 431, 442-443 (Pa. 2011).
The law is clear that “[t]he timeliness exception set forth in
[§] 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.” Commonwealth v. Brown,
111 A.3d 171, 176 (Pa. Super. 2015). We strictly enforce the principle that
“[a] petitioner must explain why he could not have learned the new fact(s)
earlier with the exercise of due diligence.” Id. Here, apart from receiving
the letter from the Pennsylvania Innocence Project, Appellant has not
alleged any steps he took to uncover Goodwine’s expungement motion. As
such, Appellant never explained why he could not have previously
discovered the new facts with the exercise of due diligence. Accordingly,
Appellant failed to raise a genuine issue of fact that would entitle him to a
hearing and his petition was subject to summary denial.
In vacating the PCRA court’s dismissal order, the Majority effectively
jettisons the requirement to plead and prove a diligent inquiry, insofar as the
rule applies to pro se petitioners. Although the Majority declares its
preference for a comprehensive and fact-specific approach to assessing due
- 10 -
J-E04008-14
diligence, the Majority confines its analysis to a status-based examination.
In other words, the Majority exempts Appellant from the public records
doctrine based solely upon his pro se status, not what he did to uncover any
allegedly unknown facts. Appellant’s incarcerated and pro se status by
itself, however, offers no probative assessment of Appellant’s effort to
discover the “new” information on which he now relies. Indeed, Appellant’s
incarcerated and pro se status hardly distinguishes the present case from
any other in which an untimely petition asserts a timeliness exception.
Nearly every petitioner who invokes the exception found at § 9545(b)(1)(ii)
in order to litigate an untimely petition will be incarcerated. This is because
serving a sentence is a prerequisite for eligibility for collateral relief. 42
Pa.C.S.A. § 9543(a)(1)(i). In addition, an overwhelming number of such
petitioners will also be acting pro se since they are no longer eligible for
appointed counsel. See Pa.R.Crim.P. 904(c) and cmt. Hence, the factors
cited by the Majority do not meaningfully distinguish the present case from
any other in which the newly-discovered facts exception is invoked, much
less counter the undisputed conclusion that Appellant did nothing for four
years while Goodwine’s motion lingered in the public domain. It is difficult
to conceive of a petition more deficient in pleading due diligence than the
one filed in this case. Therefore, going forward, there is every reason to
believe that all pro se petitioners who invoke the after-discovered facts
exception based on public information will be entitled to a hearing on their
- 11 -
J-E04008-14
claims since comprehensive fact-finding, tailored to suit the pro se
petitioner’s particular circumstances, is now required.
Second, the basis of the Majority’s blanket conclusion that all pro se
petitioners lack access to public records rests on unsubstantiated
assumptions.4 Although the Majority criticizes the PCRA court for making
determinations in a vacuum, the Majority’s due diligence analysis is similarly
flawed. The Majority observes that while “public records [are] presumptively
knowable,” this assumption does not hold for pro se petitioners who are
often incarcerated because they are no longer members of the public.
Majority Opinion at 16. Here, the Majority infers, without support, that all
pro se prisoners are entirely isolated and have no access to publicly available
information. But, the Majority makes no effort to ascertain what resources,
contacts, and capabilities are available to Appellant, or others who are
similarly situated, to discover public information such as the contents of
Goodwine’s expungement motion. Incarcerated individuals (whether pro se
____________________________________________
4
While the Majority declares that, “[it] make[s] no assumptions regarding
Appellant’s access to Goodwine’s criminal docket,” Majority Opinion at 19,
the text of its opinion is replete with examples that suggest the Majority’s
reservations about the access of pro se petitioners to public information.
See e.g. id. at 16 (“a pro se petitioner does not have access to information
otherwise readily available to the public;” “A PCRA petitioner is most often
incarcerated, and thus, no longer a member of the public.”). Indeed, it is
these unsubstantiated assumptions that lead the Majority to reject clear
Supreme Court precedent and shift the burdens of pleading and proof in all
future PCRA cases in which pro se petitioners cite public information as the
basis for invoking the timeliness exception set forth at § 9545(b)(1)(ii).
- 12 -
J-E04008-14
or represented by counsel) reside in prisons, not off-the-grid islands.
Prisons within this Commonwealth have law libraries, computer terminals,
internet access, and legal aid assistance. It is unsurprising, then, that in the
closely related context of petitions that invoke newly-recognized
constitutional rights under § 9545(b)(1)(iii), this Court routinely denies relief
to pro se, incarcerated petitioners where, among other things, they fail to
file their petitions within 60 days of the date a court decision enters the
public domain. See Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.
Super. 2012) (pro se prisoner who had served more than two decades
toward life sentence was not entitled to relief under § 9545(b)(1)(iii)
because “the [60-]day period [began] to run upon the date of the underlying
judicial decision” and prisoner filed PCRA petition more than 120 days after
decision was filed); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.
Super. 2007) (same), appeal denied, 932 A.2d 74 (Pa. 2007);
Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001) (same),
appeal denied, 863 A.2d 1141 (Pa. 2004).5 The release of a
newly-recognized constitutional right into the public domain is at least as
____________________________________________
5
I realize, of course, that legal decisions are not facts and that
§ 9545(b)(1)(ii) is distinct from § 9545(b)(1)(iii). Nevertheless, the fact
that our Supreme Court has denied further review in this line of cases at
least tacitly suggests that it is disinclined to formulate a special
accessed-based accommodation for pro se petitioners in cases invoking
timeliness exceptions under the PCRA, as the Majority has done in the
instant matter.
- 13 -
J-E04008-14
sporadic and unpredictable as the emergence of newly-discovered facts into
the public sphere. In the former context, however, this Court consistently
requires that a pro se petition be filed within 60 days of the filing date of the
decision. The Majority’s decision relieves pro se petitioners from this settled
obligation in the context of § 9545(b)(2)(ii), even though Appellant never
alleged that the lack of access to public records frustrated any investigative
effort he undertook.
Third, the Majority’s approach creates different classes of petitioners
without fact-based justification. In this case, the Majority exempts all pro se
petitioners from our Supreme Court’s firmly rooted public records rule. This
approach favors pro se petitioners over other members of the potential PCRA
petitioner class without a rational basis. On its face, the Majority’s rule
incentivizes petitioners to forego the retention of counsel, even if it is within
their means. Moreover, prospective petitioners who are represented by
counsel, whether incarcerated or on parole or probation, are not entitled to
the benefit of the Majority’s rule, even if public information may be
challenging for them to obtain. Neither § 9545(b)(1)(ii) nor any decisional
law, until now, expressly condition favorable treatment on a petitioner’s pro
se status in the manor endorsed by the Majority. I do not think it wise to
embark on such a course. See Commonwealth v. Watts, 23 A.3d 980,
983 (Pa. 2011) (PCRA “confers no authority upon this Court to fashion ad
hoc equitable exceptions to the PCRA time-bar[.]”). Instead, I would follow
- 14 -
J-E04008-14
an approach that considers whether, consistent with settled precedent, a
petition pleads and proves due diligence or explains why new facts could not
have been uncovered with the exercise of due diligence, as the PCRA
contemplates.
In part, the Majority rationalizes the adoption of its new rule by
asserting that the Commonwealth is free to come forward with proof that
Appellant possessed access to public records such as Goodwine’s
expungement motion. Majority Opinion at 19 (“Absent evidence
demonstrating Appellant’s access to the contents of Goodwine’s criminal
docket, the public records rule does not apply.”) and n.7 (“The
Commonwealth is free, of course, to adduce evidence sufficient to establish
[access to public records]. When it does, a PCRA court can engage in a real,
fact-based inquiry. A finding of access may well preclude a petitioner from
invoking the [newly]-discovered facts exception to the PCRA timeliness
requirement (just as the general public records rule works where the
petitioner is represented by counsel).”). I do not believe that this answers
the questions relating to due diligence raised by this appeal. In truth, the
Majority’s reallocation of the burden of proof in PCRA cases is a poor
compromise for its election to relax the diligence expected of a pro se
petitioner who seeks relief years after the deadline for filing a petition has
passed.
- 15 -
J-E04008-14
The law is settled that a PCRA petitioner (pro se or counseled) always
carries the burden of pleading and proving that he exercised diligence to
uncover the new information on which he relies. Without qualification, our
Supreme Court has made this point unmistakably clear: “We have
repeatedly stated it is the [petitioner’s] burden to allege and prove that
one of the timeliness exceptions applies.” Commonwealth v. Edmiston,
65 A.3d 339, 346 (Pa. 2013) (citation omitted) (emphasis added), cert.
denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (U.S. 2013); Williams,
105 A.3d at 1240; Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa.
2008); Brown, 111 A.3d at 176. If Appellant is to be awarded a hearing to
determine whether the contents of Goodwine’s motion were undiscoverable
despite the exercise of due diligence, then it is his burden to allege
circumstances that raise a genuine issue regarding that assessment, for that
is what it means to shoulder a burden under the PCRA. Edmiston, supra.
It is not the function of this Court to rewrite the law in an effort to salvage a
legally defective petition. See Watts, supra at 15. Since his petition
demonstrated conclusively that he took no action for four years to discover
publicly available information generated by Goodwine, it is obvious that
Appellant failed to discharge his burden under the legal standards that
prevailed at the time of filing.
Not only does the Majority impermissibly reallocate the burdens of
pleading and proof in PCRA cases, it does so without offering interpretive
- 16 -
J-E04008-14
guidance as to how subjective elements factor into the due diligence inquiry.
The Majority allows the Commonwealth to adduce evidence to establish a
pro se petitioner’s access to public information, but does not explain
precisely what the Commonwealth must demonstrate in order to satisfy its
new burden. For example, to establish sufficient access to public
information, must the Commonwealth prove 60 continuous days of access to
an open prison library, an available prison legal aide, a working computer
system, and a serviceable internet connection capable of accessing public
court dockets? If so, must the Commonwealth also prove that these
resources were available at times when the petitioner was not in the
infirmary or when the prison was not on lock down? How far into the past
will the Commonwealth’s new obligation extend? Here, the Commonwealth
will have to prove access to public information for a specific petitioner at a
specific facility6 extending approximately five years into the past. In future
cases, will the Commonwealth need to prove access as far as 10 or 15 years
into the past? The pro se exception adopted by the Majority is not limited to
recently-disclosed public information; hence, the scope and contours of this
new duty imposed upon the Commonwealth under the Majority’s ruling is
entirely undefined and potentially quite onerous. The difficulties in
____________________________________________
6
Of course, proving access to public information for petitioners who have
been transferred during their time in prison or who have relocated while on
parole or probation will present challenges that are more complicated for the
Commonwealth.
- 17 -
J-E04008-14
implementing such a potentially far-reaching duty militate strongly in favor
of continuing to follow our Supreme Court’s objective approach to
interpreting § 9545(b)(1)(ii).
Finally, the Majority’s suggestion that Appellant had “no reason” to
initiate an inquiry is unavailing. In support of its determination that nothing
compelled Appellant to investigate exculpatory facts generated by Goodwine,
the Majority relies heavily on the timing and contents of Goodwine’s motion.
See Majority Opinion at 18-19. In particular, the Majority notes that
Goodwine filed his motion more than ten years after Appellant’s judgment of
sentence became final. Id. at 19. After such an extended period, the
Majority finds it neither “realistic nor reasonable” to expect Appellant to
continue to search public records to ascertain whether Goodwine may have
disclosed potentially exculpatory information regarding Appellant’s
convictions. Id. The Majority also cites the contents of Goodwine’s motion,
which alleged that Goodwine was advised to forego a self-defense claim at
trial and that he instead chose not to testify. Relying on these allegations,
the Majority concludes that, “Goodwine’s silence at trial (and his acquittal of
the murder charges) eliminated any reasonable expectation [on the part of
Appellant] that [Goodwine] would, thereafter, publicly acknowledge his
guilt.” Majority Opinion at 18. Ultimately, the Majority concludes that
Appellant had “no reason to seek out facts in support of a claim for collateral
relief.” Id.
- 18 -
J-E04008-14
The Majority also finds fault with the PCRA court’s assessments
relating to the factors that could have triggered Appellant’s investigation of
exculpatory facts. First, the Majority criticizes the PCRA court’s refusal to
credit Appellant’s claim that the Pennsylvania Innocence Project approached
him in May 2013 without solicitation. Id. The Majority asserts that the
PCRA court overstepped the bounds of its discretion by “mak[ing] a
credibility finding in a vacuum.” Id. The Majority also rejects the PCRA
court’s determination that Appellant must have known previously that
Goodwine murdered Seth Floyd because the jury convicted both men of
conspiracy. Id. Here, the Majority rejects the PCRA court’s conclusions in
light of Appellant’s claims of innocence and the absence of a fully developed
factual record. Id.
Based upon my own extensive review of the certified record in this
case, I find no error or abuse of discretion in the PCRA court’s
determinations. Furthermore, as I shall detail below, I find an ample basis
on which to conclude that Appellant had every reason to be particularly
vigilant of Goodwine’s criminal record filings since there was no more likely
source of exculpatory information.
The record reveals that the PCRA court presided over Appellant’s
and Goodwine’s joint jury trial, which commenced on September 21,
1993. At trial, a number of witnesses testified as to their knowledge of
Floyd’s murder, including medical experts, Allegheny County Correctional
- 19 -
J-E04008-14
Officers, and several inmates at the jail. Correctional Officer Gary Fluman
testified that on March 9, 1993, at approximately 12:15 p.m., an inmate
summoned him to a cell in the Allegheny County Jail. N.T., 9/22/93, at 254.
Upon arriving at the cell, Officer Fluman observed a body covered by a
mattress and bedding. Id. at 255. Officer Fluman removed the bedding and
mattress and discovered Floyd’s body tied by the throat with a ligature that
was attached to a chain that held the bed to the wall.7 Id. The officer did
not detect a pulse. Id.
Dr. Leon Rozin, a forensic pathologist with the Allegheny County
Coroner’s Office, testified regarding his findings following an autopsy on
Floyd’s body. In addition to minor injuries, Dr. Rozin observed signs
showing the use of a ligature on Floyd, including embedded markings on the
victim’s neck. N.T., 9/24/93, at 694-703. Based upon his examination, Dr.
Rozin concluded that Floyd died as a result of asphyxiation that could have
resulted from the ligatures placed around Floyd’s neck. Id. at 701-702. Dr.
Rozin also opined that it would have taken between three to five minutes to
____________________________________________
7
Detective Gary Tallent testified that he processed evidence recovered from
Floyd’s jail cell. N.T., 9/21/93, at 374-375. In particular, Detective Tallent
recovered a ligature device fashioned from a torn bed sheet and strands
from a mop. Id. at 376-377. Detective Tallent also recovered a second
ligature device made from a pink and white shoelace, which had been placed
around Floyd’s neck. Id. at 377. Detective Tallent noted that Floyd had a
black athletic shoe on his left foot and that the matching right shoe was
located on the floor of Floyd’s cell. Id. There were no shoelaces in the black
athletic shoes. Id.
- 20 -
J-E04008-14
kill the victim through strangulation but that he would have lost
consciousness after the first or second minute. Id. at 703.
Micah Goodman was among the inmates who testified that he saw
Appellant, Goodwine, and Floyd engaged in what he thought was wrestling in
Floyd’s cell on the day of the murder. N.T., 9/23/93, at 492. Appellant and
Goodwine were standing behind Floyd pushing him on his bed and holding
him down, while Floyd appeared to be trying to free himself. Id. at
493-494. Approximately ten to 15 minutes later, Goodman observed
Appellant and Goodwine running down the steps in the jail. Id. at 501. A
second inmate, Marvin Harper, confirmed Goodman’s testimony. He testified
that as he walked past Floyd’s cell, he heard scuffling inside and saw two
men, whom he identified at trial as Appellant and Goodwine, struggling with
a third man on a bed. Id. Edwin Wright, a third inmate, identified Appellant
and Goodwine as being in Floyd’s cell around lunchtime on the day of the
murder. Id. at 449-450. Inmate Gregory McKinney testified that Appellant
admitted that he choked and suffocated Floyd with a plastic bag and then
tied him to his bunk bed to make it appear as though he had committed
suicide. Id. at 619; N.T., 9/24/93, at 628. Inmate Warren Parrott testified
that, ten to 14 days before Floyd’s murder, he overheard Appellant talking
with Goodwine about deferring a transfer so that they could get together and
“fix” a situation that had arisen with an individual from California, referring
to Floyd. N.T., 9/23/93, at 528-546. Parrott understood this conversation
- 21 -
J-E04008-14
between Appellant and Goodwine as a plan to kill Floyd. Id. at 546. In
addition, inmate William Johnson described Appellant and Goodwine as
“partners” who were in each other’s company “all the time.” Id. at 600.
Based on the foregoing testimony from the certified record in this
appeal, I am unable to agree with the Majority’s determination that the
PCRA court overstepped the bounds of its discretion by making credibility
assessments in a vacuum or by prematurely reaching factual conclusions in
the absence of a fully developed record. This Court acknowledges that,
“[g]enerally, it is deemed preferable for the same judge who presided at trial
to preside over the post-conviction proceedings since familiarity with the
case will likely assist the proper administration of justice.” Commonwealth
v. Martorano, 89 A.3d 301, 307 (Pa. Super. 2014). Here, the PCRA court
presided over the joint trial of Appellant and Goodwine and had the
opportunity to hear the testimony of the Commonwealth’s 19 witnesses,
including medical experts, investigating detectives, jail guards, inmates, and
others. This evidence, transcribed in over 1000 pages of trial testimony,
overwhelmingly established Appellant’s direct participation in Floyd’s ligature
strangulation, as well his involvement in a criminal conspiracy to commit
murder with Goodwine. The definitive proof of Appellant’s guilt, of which the
PCRA court was undoubtedly aware, warranted the court’s skepticism toward
Appellant’s professed lack of knowledge about the timing and content of
Goodwine’s criminal filing. In the face of such an abundant record, I cannot
- 22 -
J-E04008-14
fault the PCRA court for using its extensive knowledge and familiarity with
the facts in this matter in reaching a result that fully complied with
prevailing law.
In addition, based upon the extensive trial testimony that linked
Appellant and Goodwine, I also believe that our recent decisions, on which
the Majority heavily relies, do not support the conclusion that Appellant is
entitled to the benefit of a sweeping per se rule which holds that he is
entitled to relief based solely upon his pro se status. The Majority cites our
decisions in Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super.
2014) (en banc), appeal granted, 2014 WL 6991663 (Pa. 2014) and
Commonwealth v. Davis, 86 A.3d 883 (Pa. Super. 2014). These cases,
however, are factually distinguishable.
In Medina, this Court held that a petitioner, who relied on the
personal recantation of trial testimony by a witness for the Commonwealth,
met the newly-discovered facts exception. Central to our conclusion was the
fact that the petitioner first learned of the witness’ recantation on or after
October 18, 2006 when the witness transferred to the same prison facility
that housed the petitioner and informed him of police coercion. Medina, 92
A.3d at 1217-1218. There was no other source for the recantation evidence
and the petitioner had no reason to look for it. Id. The record also
confirmed that the petitioner filed his petition on December 5, 2006, within
60 days of the date he initially learned of the witness’ recantation. Id.
- 23 -
J-E04008-14
Unlike the petitioner in Medina, Appellant here relied on a public court
filing by his co-defendant Goodwine to establish an exception to the PCRA’s
time bar. In contrast to the Commonwealth witness at issue in Medina,
whose coercion at the hands of police was unknown and unknowable,
Appellant here was well aware of his co-defendant’s involvement in the case
at the time the murder occurred. Moreover, contrary to the Majority’s
conclusion, I believe that Goodwine’s acquittal gave him license to make
exculpatory disclosures without risk of criminal prosecution.8 Combining
Appellant’s awareness of this fact with the precise factual posture of this
case, Goodwine was the most, if not the sole, promising source of
exculpatory evidence supportive of Appellant’s innocence claim. This
considerably narrowed the scope of Appellant’s information search from “the
entirety of the public domain” to the criminal docket filings of his former
criminal confederate, Goodwine. Since Appellant had every reason to
monitor Goodwine’s court filings from the moment of conviction in 1993,
Medina is distinguishable and does not mandate relief.
Davis, too, is inapposite. In Davis, a panel of this Court held that a
petitioner properly invoked timeliness exceptions found at §§ 9454(b)(1)(i)
____________________________________________
8
“Under the Double Jeopardy Clauses of both the United States and
Pennsylvania Constitutions, as well as under Pennsylvania Crimes Code, a
second prosecution for the same offense after acquittal is prohibited.”
Commonwealth v. DeLong, 879 A.2d 234, 238 (Pa. Super. 2005), appeal
denied, 889 A.2d 1213 (Pa. 2005).
- 24 -
J-E04008-14
and (ii) where he acted diligently under the circumstances and “filed his pro
se petition within 60 days of receiving [the] initial affidavit that instigated
[his] discovery of all of [his] claims.” Id. at 891. In so holding, we noted
that while trial transcripts containing evidence of a witness’ perjurious
statements against the petitioner constituted information within the public
domain, the petitioner nevertheless acted with due diligence under the
circumstances since neither the witness nor the transcripts could be found.
Id. In addition, focusing exclusively on the petitioner’s trial in Davis, the
petitioner had no reason to know of enticements bestowed upon the witness
by the Commonwealth. These facts distinguish Davis in that there can be
no dispute in the present case that Appellant knew of Goodwine’s role and
acquittal in the murder as early as 1993. Moreover, Goodwine’s
expungement motion was, in fact, available on a public court docket, as
evidenced by its recovery through the efforts of the Pennsylvania Innocence
Project. Hence Davis, like Medina, does not support relief.9
____________________________________________
9
The Majority also cites Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007) to support its contention that Appellant is entitled to relief. Bennett,
however, never involved an express holding that petitioners are entitled to
special, access-based accommodations where they lack the benefit of
counsel. Instead, the Supreme Court concluded that an order dismissing the
petitioner’s first PCRA appeal was only a public record in the broadest sense
because such orders are not sent directly to the prisoner but only to counsel
on the assumption that counsel will inform his client of the court’s action.
The Court then noted that the logic of this assumption breaks down where
counsel abandons his client. Thus, the Court declined to treat the order as a
(Footnote Continued Next Page)
- 25 -
J-E04008-14
For each of the foregoing reasons, I would hold that Appellant's second
petition is untimely on its face and that he failed to plead and prove a
statutory exception to the PCRA's jurisdictional time-bar. Therefore, in my
view, the PCRA court correctly determined that it lacked jurisdiction to
consider Appellant's substantive claims. Accordingly, I dissent.
President Judge Gantman and Judge Shogan join this dissenting
opinion.
_______________________
(Footnote Continued)
public record where the prisoner’s only means of access to the information
was restricted by counsel’s abandonment. Id. at 1266.
That is not the situation before us. Here, Goodwines’ expungement motion
resided on a public trial court docket, available to all who sought it. A third
party, the Pennsylvania Innocence Project, recovered the document and
transmitted it to Appellant. Appellant has offered no explanation for why he
could not obtain Goodwines’ expungement papers as the Pennsylvania
Innocence Project did. Hence, the concern that confronted our Supreme
Court in Bennett is simply not present here. Appellant, unlike Bennett,
acted pro se from the initiation of the instant proceedings and, thus, never
had any expectation of counsel’s assistance. While the rule in Bennett
might apply in cases where counsel’s unanticipated abandonment defeats a
petitioner’s legitimate expectations, it has no application where the
petitioner initiates the proceedings pro se and expects to continue in that
capacity.
The Majority’s approach effectively allows Appellant to transfer his duty of
due diligence under the PCRA to a third party and, in turn, to rely on the
results of the third party’s efforts long after applicable deadlines have
passed. I believe that such an approach is entirely inconsistent with
prevailing interpretations of the PCRA’s timeliness requirements.
- 26 -