J-S16026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KIM MASON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 612 EDA 2019

Appeal from the PCRA Order Entered March 1, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0607982-1979

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 21, 2020

Kim Mason (“Mason”) appeals from the order entered on March 1, 2019, 

which dismissed as untimely his second petition filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

A jury convicted Mason in June 1980 “on three counts of first-degree 

murder, two counts of arson endangering property, arson endangering 

persons, risking catastrophe, causing catastrophe, and criminal conspiracy.” 

PCRA Ct. Op., filed 4/29/19, at 4. The crimes stemmed from Mason and his 

co-defendants firebombing a rival gang member’s residence in 1977, killing 

one adult and two children. The trial court sentenced Mason to three 

consecutive life sentences on the charges of first-degree murder, and to an 

aggregate sentence of 25 to 50 years’ incarceration on the remaining charges, 

to run consecutive to his life sentences.
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Mason appealed and this Court affirmed his judgment of sentence on 

November 5, 1986. Commonwealth v. Mason, 518 A.2d 282, 292

(Pa.Super. 1986). In the same opinion, this Court vacated the judgments of 

sentence for two of Mason’s co-defendants, Darryl Lamar and Mack Smith,

and remanded their cases for new trials. Id. Mason did not seek further review 

in the Pennsylvania Supreme Court. 

Mason filed his first PCRA petition on March 4, 1993, in which he alleged 

ineffectiveness of trial counsel. The PCRA court dismissed the petition and this 

Court affirmed. The Pennsylvania Supreme Court denied allowance of appeal 

in September 1998.

On December 12, 2014, Mason filed the instant PCRA petition. Six days 

later, Mason filed a pro se amended PCRA petition. The PCRA court appointed 

counsel and he filed a Turner/Finley1letter and a motion to withdraw as 

counsel. The PCRA court sent Mason a Pa.R.Crim.P. 907 notice of intent to 

dismiss his petition and Mason filed a response. PCRA counsel filed an 

amended PCRA petition alleging that newly-discovered facts excused Mason 

from the PCRA’s time bar. The court sent Mason a second Rule 907 notice of 

intent to dismiss, and ultimately dismissed his petition as untimely. This timely 

appeal followed. 

Mason raises one issue for our review: “Did the PCRA court err in 

dismissing [Mason’s] PCRA [p]etition without a hearing because [Mason]

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

Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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presented newly-discovered evidence which exonerates [him]?” Mason’s Br. 

at 4. 

“Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination 

and whether its decision is free of legal error.” Commonwealth v. Beatty, 

207 A.3d 957, 960-61 (Pa.Super. 2019) (citation omitted). “We afford the 

court’s factual findings deference unless there is no support for them in the 

certified record.” Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa.Super. 

2019) (citation omitted).

It is well-established that “[u]nder the PCRA, any petition for relief, 

including second and subsequent petitions, must be filed within one year of 

the date on which the judgment of sentence becomes final.” Id. (citation 

omitted). For purposes of the 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.A. § 9545(b)(3). The 

PCRA’s time limit is mandatory and jurisdictional in nature, and the court may 

not ignore it in order to reach the merits of the petition. Greco, 203 A.3d at 

1124 (citation omitted). Courts may consider a PCRA petition filed more than 

one year after a judgment of sentence becomes final only if the petitioner 

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 
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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). A petitioner must raise the claim within 60 

days that the claim could have been raised. Id. at § 9545(b)(2).2

Instantly, it is undisputed that Mason’s PCRA petition is patently 

untimely. Therefore, Mason was required to plead and prove at least one of 

the time bar exceptions. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Mason attempts to assert the newly-discovered fact exception, pursuant

to section 9545(b)(1)(ii). Mason contends that in November 2014, he learned 

from a fellow prisoner that his co-defendant Darryl Lamar was acquitted of 

murder at his second trial, which “stemmed from [three] eyewitnesses[’] . . . 

refusal to testify at the second trial of Darryl Lamar.” Mason’s Br. at 14. Mason 

argues that he was “never informed of the recantation and refusal to testify 

at the second trial of Darryl Lamar by [these three witnesses] and “[w]ithout 

these individuals’ testimony, there was scant testimony against [Mason].” Id.

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2 Section 9545(b)(2) was amended to reflect that a petitioner has one year 

rather than the prior deadline of 60 days to raise their claim. This amendment 

became effective on December 24, 2018 but only applies to claims arising on 

December 24, 2017 or after. Thus, the amendment does not apply here.
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at 16. He claims that he did not know these “facts” before 2014 and that could 

not have known because “he does not have access to trial transcripts from 

other individuals’ trials.” Id. Mason concludes that the “PCRA court erred in 

dismissing [his] PCRA [p]etition without a hearing because it was not possible 

to determine diligence and the credibility of the newly-discovered evidence 

without an evidentiary hearing.” Id. at 9.

Mason further argues that a Brady3 violation occurred when the 

Commonwealth allegedly failed to inform him that the Commonwealth’s

cooperating witnesses’ agreement “fell through.” Mason’s Br. at 17. Mason 

maintains that “[w]ithout these cooperators’ testimony, the outcome of the 

trial would have been different in that there was scant, if any, evidence against 

[him].” Id. According to Mason, “[t]he failure to convey this information fully 

to [him] prior to and subsequent to trial is also indicative of government 

interference on the part of the Office of the District Attorney of Philadelphia to 

continue to deprive [him] of Due Process and to allow [him] access to 

exculpatory information to which he is entitled.” Id.

In order to succeed in raising the newly-discovered fact exception, a 

petitioner must establish that: (1) “the facts upon which the claim is

predicated were unknown,” and (2) the facts “could not have been ascertained 

by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he due 

diligence inquiry is fact-sensitive and dependent upon the circumstances 

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3 Brady v. Maryland, 373 U.S. 83 (1963). 
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presented.” Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa.Super. 

2015) (en banc) (footnote omitted). “Due diligence demands that the 

petitioner take reasonable steps to protect his own interests.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citation 

omitted). “A petitioner must explain why he could not have learned the new 

fact(s) earlier with the exercise of due diligence.” Id. (citations omitted).

Further, “[t]he focus of the exception is on the newly discovered facts, not on 

a newly discovered or newly willing source for previously known facts.”

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (internal 

quotation marks, citation, brackets and emphasis omitted).

Here, this Court affirmed Mason’s judgment of sentence and vacated 

Lamar’s judgment of sentence in 1986. Mason, 518 A.2d at 292. Therefore, 

as early as 1986, Mason knew that Lamar was going to get a new trial and in 

1988 Lamar was re-tried and found not guilty. Mason admits that Lamar’s notguilty verdict is a matter of public record. Mason’s Br. at 14. Mason fails to 

explain why he was unable to determine the events of Lamar’s re-trial for the 

next 26 years. His petition is devoid of any facts that he exercised due

diligence in discovering this information prior to November 2014.

Furthermore, the witnesses’ recantations are not “facts” for purposes of 

the new facts exception. Rather, Mason knew all along what he believed the 

relevant facts to be, and these witnesses’ change in testimony at most 

amounts to a new source of evidence of “facts” he already would have known.

Accordingly, Mason has failed to demonstrate that “the facts upon which the 
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claim is predicated were unknown to [him] and could not have been 

ascertained by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

Mason’s Brady claim is also without merit. In order to prove a Brady 

violation, “a defendant is required to demonstrate: (1) evidence was 

suppressed by the Commonwealth, either willfully or inadvertently; (2) the 

evidence was favorable to the defendant; and (3) the evidence was material, 

in that its omission resulted in prejudice to the defendant.” Commonwealth 

v. Dennis, 17 A.3d 297, 308 (Pa. 2011) (citations omitted). Prejudice occurs 

in the Brady context if “the evidence suppressed [is] material to guilt or 

punishment.” Commonwealth v. Gibson, 951 A.2d 1110, 1126 (Pa. 2008)

(citations omitted). Further, 

[t]he burden rests with the appellant to prove, by reference 

to the record, that evidence was withheld or suppressed by 

the prosecution. The evidence at issue must have been 

material evidence that deprived the defendant of a fair trial.

Favorable evidence is material, and constitutional error 

results from its suppression by the government, if there is 

a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would 

have been different.

Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (quotation marks 

and citations omitted).

Mason claims that the “Brady issue is also newly-discovered in that [he] 

did not know that the Commonwealth’s cooperators’ agreements fell through 

and the full bases of that cooperation as well as the full criminal culpability of 

the cooperators.” Mason’s Br. at 17. Again, Mason has not explained how he 
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exercised any diligence in discovering this information. See Roney, 79 A.3d 

at 608 (stating “Brady is not violated when the appellant knew or, with 

reasonable diligence, could have uncovered the evidence in question, or when 

the evidence was available to the defense from other sources”). Moreover, 

Mason has failed to show that the Commonwealth withheld this information or 

that the information was material evidence that deprived him of a fair trial. 

Mason’s bald assertion that the outcome of his trial would be different without 

these witnesses’ testimony is mere speculation and does not constitute a 

Brady violation. Finally, to the extent Mason is attempting to assert the 

governmental-interference exception to the PCRA time bar, the claim fails for 

these same reasons. We thus affirm the dismissal of his PCRA petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/20