J-S59009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK VINCENT,

Appellant No. 3496 EDA 2016

Appeal from the PCRA Order Entered October 27, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0710181-1995

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 25, 2017

Appellant, Mark Vincent, appeals pro se from the post-conviction 

court’s October 27, 2016 order dismissing, as untimely, his petition filed 

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

For the reasons herein, we reverse and remand. 

The PCRA court summarized the procedural history underlying this 

appeal as follows:

[Appellant] was arrested and subsequently charged with 

homicide and related offenses stemming from the killing of 

James Moore on May 12, 1995[,] in the city of Philadelphia. On 

October 16, 1996, following a jury trial presided over by the 

Honorable James Lineberger, [Appellant] was convicted of firstdegree murder, robbery, and weapons offenses. On June 30, 

1997, the trial court imposed a sentence of life imprisonment for 

the murder conviction and a lesser consecutive term of 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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incarceration for the robbery conviction. Following a direct 

appeal, [Appellant’s] judgment of sentence was affirmed by the 

Superior Court on October 6, 1998, and the Pennsylvania 

Supreme Court denied allocatur on October [7], 1999.2

2 Commonwealth v. Vincent, 731 A.2d 200 (Pa. Super. 

1998) (unpublished memorandum), appeal denied, 745 

A.2d 1222 (Pa. 1999). 

On January 9, 2002, [Appellant] filed his first pro se PCRA 

petition. Counsel was appointed and subsequently filed a 

Turner/Finley no merit letter.3 The PCRA court denied the 

petition on April 14, 2003. The Superior Court affirmed the 

PCRA court’s order denying relief on September 3, 2004.4

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc). 

4 Commonwealth v. Vincent, 863 A.2d 1233 (Pa. Super. 

2004) (unpublished memorandum). 

On February 12, 2016, [Appellant] filed the instant pro se PCRA 

petition, his second. Pursuant to Pennsylvania Rule of Criminal 

Procedure 907, [Appellant] was served notice of the PCRA 

court’s intention to dismiss his petition on July 19, 2016. 

[Appellant] submitted a response to the Rule 907 notice on 

August 9, 2016. On October 27, 2016, the PCRA court dismissed 

his petition as untimely. On November 4, 2016, the instant 

notice of appeal was timely filed to the Superior Court.

PCRA Court Opinion (PCO), 2/7/2017, at 1-2 (single footnote omitted). 

On appeal, Appellant raises a single issue for our review:

Did the PCRA court err in dismissing the newly discovered 

evidence based upon a purported lack of diligence?

Appellant’s Brief at 4 (unnecessary capitalization omitted). 

Our standard of review regarding an order denying post-conviction 

relief is whether the findings of the court are “supported by the record and 

free of legal error.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093 
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(Pa. 2010) (citations omitted). We begin by addressing the timeliness of 

Appellant’s petition because “[t]he PCRA’s time restrictions are jurisdictional 

in nature. ... Without jurisdiction, we simply do not have the legal authority 

to address the substantive claims.” Id. (citations omitted). With respect to 

timeliness, the PCRA provides, in pertinent part, the following: 

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment becomes final, unless the petition 

alleges and the petitioner proves that:

(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.

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented.

42 Pa.C.S. § 9545(b)(1)-(2). 

Here, as mentioned by the PCRA court above, this Court affirmed 

Appellant’s judgment of sentence on October 6, 1998, and the Pennsylvania 

Supreme Court denied allocatur on October 7, 1999. Appellant did not file a 

petition for a writ of certiorari with the United States Supreme Court. Thus, 
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Appellant’s judgment of sentence became final on January 5, 2000, and he 

had one year from that date to file a timely PCRA petition. See 42 Pa.C.S. § 

9545(b)(3) (stating that a judgment of sentence becomes final at the 

conclusion of direct review or the expiration of the time for seeking the 

review); U.S. Sup. Ct. R. 13(1) (stating that a petition for a writ of certiorari 

is timely when it is filed within 90 days after entry of the judgment). 

Therefore, his present petition, filed on February 12, 2016, is patently 

untimely, and Appellant must satisfy one of the exceptions to the timeliness 

requirement set forth in section 9545(b)(1)(i)-(iii), supra.

Appellant argues that he meets the exception for newly-discovered 

facts under section 9545(b)(1)(ii). “When 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.” 

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation omitted). 

Further, our Supreme Court has “unequivocally explained that the exception 

set forth in subsection (b)(1)(ii) does not require any merits analysis of the 

underlying claim. Rather, the exception only requires a petitioner to prove 

that the facts were unknown to him and that he exercised due diligence in 

discovering those facts.” Id. (citation and internal quotation marks 

omitted). “Due diligence does not require perfect vigilance and punctilious 

care, but merely a showing the party has put forth reasonable effort to 
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obtain the information upon which a claim is based.” Id. at 230 (citation 

and internal quotation marks omitted). 

In his PCRA petition, Appellant claimed that he satisfied section 

9545(b)(1)(ii), based on the affidavit of a previously unknown witness 

named William Adams. See Appellant’s PCRA Petition (hereinafter Petition), 

2/12/2016, at 2-3. Appellant summarized the content of Mr. Adams’s 

affidavit as follows: 

According to Mr. Adams, he was present when the events 

leading to [Appellant’s] arrest occurred and witnessed an 

individual named Kenneth Billie a.k.a. Kenneth Hall shoot the 

victim. Mr. Adams state[s] that he was on his way home on the 

night in question and noticed a crowd in the vicinity of south 

60th Street. Mr. Adams reveals in his affidavit that he saw 

[Appellant] arguing with the decedent who[] was a childhood 

friend of Kenneth Billie. After witnessing [Appellant] slap the 

victim, [M]r. Adams saw Kenneth Billie a.k.a. Kenneth Hall pull a 

handgun from his jacket and shoot the victim, although he was 

shooting at [Appellant].

Id. 

The PCRA court subsequently dismissed Appellant’s petition, 

determining that he did not fulfill the requirements of section 9545(b)(1)(ii). 

Specifically, the PCRA court found that Appellant “failed ... to demonstrate 

that the ‘fact’ that someone else murdered the decedent could not, with the 

exercise of due diligence, have been ascertained earlier.” PCO at 4. It 

stated that “[a]t trial, the Commonwealth presented multiple 

eye[]witnesses. Rather than detailing any efforts to contact them, 

[Appellant] speculated that neither [of the eyewitnesses] would have been 

amenable to cooperation, because they were ‘friends to the prosecution.’” 
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Id. (citation omitted). The PCRA court also observed that “[i]n addition to 

known witnesses, [Appellant] had reason to suspect the existence of other 

potentially helpful witnesses. [Mr.] Adams expressed detailed knowledge of 

the incident, articulating nicknames of, and relationships among, those 

present” and “described the gathering of individuals as a crowd.” Id. 

Nonetheless, it noted that Appellant “failed to articulate any efforts to locate 

or identify additional witnesses, such as [Mr.] Adams.” Id. Although it 

acknowledged that Appellant claimed he “was unable to conduct an 

investigation because he was incarcerated[,]” it found his “explanation for 

failing to act ... insufficient absent a demonstration that his access to 

communication channels was restricted while in custody.” Id. at 4-5. 

Instantly, Appellant argues that the PCRA court improperly required 

“maximum diligence” instead of “due diligence” in its application of section 

9545(b)(1)(ii). See Appellant’s Brief at 10. He claims that he could not 

identify additional witnesses because he “does not know any of those 

individuals and knew nothing of them prior to receiving the affidavit.” Id. 

Moreover, he asserts that it was unreasonable for the PCRA court to expect 

him to contact the Commonwealth’s eyewitnesses because “attempting to 

contact [them] could have exposed [Appellant] to criminal liability for 

witness tampering.” Id. Finally, in response to the PCRA court’s evaluation 

that he did not adequately demonstrate efforts to identify potential 

witnesses while in prison, Appellant asserts that “nothing would have 

revealed Mr. Adams except for Mr. Adams himself.” Id. at 11. 
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After careful review, we believe that Appellant has satisfied section 

9545(b)(1)(ii). First, Appellant has established that the facts upon which his 

claim was predicated — Mr. Adams’s witnessing Mr. Billie shoot the decedent 

— were unknown. See Cox, 146 A.3d at 227 (“When 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.”). 

Appellant alleges that “[p]rior to, during or after trial, [he] had no 

knowledge of Mr. [A]dams nor of the information he possessed. [T]here was 

nothing presented during trial that would have remotely alerted the defense 

to Mr. Adams or Kenneth Billie a.k.a. Kenneth Hall.” Petition at 3. Further, 

the Commonwealth does not argue that Appellant had knowledge of any unnamed eyewitnesses at the scene of the shooting, let alone Mr. Adams 

specifically, nor does our cursory review of the record indicate that Appellant 

did.

Second, Appellant has shown that the information in Mr. Adams’s 

affidavit could not have been ascertained by the exercise of due diligence. 

See Cox, 146 A.3d at 227. As Appellant did not know that there were any 

other eyewitnesses to the shooting, no reasonable effort would have led to 

his obtaining the information set forth in Mr. Adams’s affidavit. See id. at 

230. Accordingly, the PCRA court erred in determining that Appellant did 

not meet section 9545(b)(1)(ii) and deeming his petition untimely on this 
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basis.1 Therefore, a hearing is warranted on the merits of Appellant’s afterdiscovered evidence claim.2

 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2017

____________________________________________

1 We further note that Appellant filed his petition within 60 days of the date 

the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2) (“Any 

petition invoking an exception ... shall be filed within 60 days of the date the 

claim could have been presented.”); Affidavit of William Adams, 2/3/2016, 

at 2 (“On January 4, 2016, ... I approached [Appellant] and relayed the 

above information to him.”). 

2 See Cox, 146 A.3d at 228 (explaining that to establish an after-discovered 

evidence claim, “a petitioner must prove that (1) the evidence has been 

discovered after trial and it could not have been obtained at or prior to trial 

through reasonable diligence; (2) the evidence is not cumulative; (3) it is 

not being used solely to impeach credibility; and (4) it would likely compel a 

different verdict”) (citation omitted).