J-S66029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DWIGHT HAKIEM ECHOLS JR. 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 855 EDA 2018

Appeal from the PCRA Order March 2, 2018

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0005078-2005

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.: FILED APRIL 16, 2019

Dwight Echols, Jr. appeals from the order dismissing his second petition 

pursuant to the Post Conviction Relief Act (“PCRA”). Echols contends the PCRA 

court erred in concluding he failed to establish the newly discovered fact

exception to the PCRA’s time bar. While we agree that the PCRA court erred 

in its application of the newly discovered fact exception, we nonetheless 

affirm, as the allegations in Echols’s petition are insufficient to establish a 

prima facie case for relief under the PCRA.

A jury convicted Echols of shooting and killing Keith Shelton. On April 5, 

2007, the court sentenced Echols to life imprisonment without the possibility 

of parole. This Court affirmed his judgment of sentence by order dated 

December 31, 2007. Echols did not seek review by the Supreme Court of 

Pennsylvania.
J-S66029-18

- 2 -

Echols filed his first PCRA petition on December 1, 2008. After appointed 

counsel filed an amended petition, the PCRA court denied relief. On appeal to 

this Court, Echols argued only that trial counsel had been ineffective by failing 

to argue self-defense to the jury. This Court affirmed the denial by order dated 

December 14, 2010, based upon the PCRA court’s finding that trial counsel 

pursued a reasonable strategy in abandoning the claim of self-defense in favor 

of a defense of mistaken identity.

Echols filed the instant pro se PCRA petition,1 his second, on October 

10, 2017. In this petition, Echols asserted that in the previous sixty days, he 

had learned of the conviction of Detective Gerald Pawling on charges of 

tampering with evidence and theft from a police evidence room. Detective

Pawling gathered evidence and testified at Echols’s trial. 

Echols argued these allegations constituted previously unknown facts 

qualifying as an exception to the PCRA’s timeliness requirements. In 

particular, Echols asserted it was possible Pawling had misappropriated a black 

jersey, worn by the victim, from the crime scene. Echols posited that the 

jersey may have gunshot residue that would have corroborated a trial strategy 

of self-defense.

The PCRA court found Echols had not exercised due diligence in 

discovering Pawling’s conviction, which received coverage in Chester County 

____________________________________________

1 After Echols filed this appeal pro se, present counsel entered her appearance.
J-S66029-18

- 3 -

newspapers in 2014. The PCRA court also found Echols could not establish a 

prima facie case that Pawling’s conviction would entitle Echols to relief under 

the PCRA. This timely appeal followed.

Generally, the PCRA grants jurisdiction to hear a collateral attack on a 

conviction only if a petition is filed in the year after the judgment of sentence 

becomes final. See Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). 

The judgment of sentence is finalized when the petitioner’s direct appeal rights 

have been exhausted. See id., at 17. After the expiration of the one-year 

period, a petitioner must plead and prove one of three enumerated exceptions 

to the time-bar in order to establish jurisdiction under the PCRA. See id.

Echols concedes his current petition is facially untimely. See Appellant’s 

Brief, at 14. However, he contends he has sufficiently pled an exception to the 

PCRA’s time bar. See id. Specifically, he believes his petition is sufficient to 

establish the newly discovered fact exception to the time bar. See id.

To qualify for the newly discovered fact exception to the PCRA's time 

limitations under 42 Pa.C.S.A. § 9545(b)(1)(ii), Echols need only establish 

that the facts upon which his claim is based were unknown to him and could 

not have been ascertained by the exercise of due diligence. See 

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017). “In requiring that 

the facts be unknown to the petitioner, the statute itself contains no exception, 

express or constructive, regarding information that is of public record.” Id. at 

632 (emphasis omitted). And yet, our jurisprudence has developed a 
J-S66029-18

- 4 -

presumption that “information is not unknown to a PCRA petitioner when the 

information was a matter of public record[.]” Id. at 633.

The continuing validity of this “public record presumption” has been 

brought into serious question. See generally id. And in the specific 

circumstances of an incarcerated, pro se petitioner, it has been abrogated. 

See id. at 638. “However reasonable the public record presumption may be 

with regard to PCRA petitioners generally, the presumption cannot reasonably 

be applied to pro se PCRA petitioners who are incarcerated.” Id. at 635

(emphasis and footnote omitted). 

While the PCRA court does not explicitly invoke a presumption that 

Echols knew of Pawling’s conviction due to public records, it nonetheless found 

Echols’s petition untimely, without a hearing, due to coverage of the case in 

local newspapers. See PCRA Court Order, 3/2/18, at 2 n.1.2 There is no 

meaningful difference between this analysis and the application of the public 

records presumption. There is no evidence of record upon which the court 

could conclude Echols actually knew of the conviction more than sixty days 

____________________________________________

2 On October 24, 2018, the General Assembly amended section 9545(b)(2) in 

order to extend the time for filing a petition from sixty days to one year from 

the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act 

2018-146 (S.B. 915), effective December 24, 2018. However, this 

amendment applies only to claims arising one year before the effective date 

of this section, i.e., December 24, 2017, or thereafter. As we conclude Echols’s 

petition does not set forth a prima facie case for relief under the PCRA, we 

need not address whether his claim is subject to the sixty-day period or the 

one-year period.
J-S66029-18

- 5 -

before he filed his petition. Nor is there any evidence upon which to conclude 

he failed to exercise due diligence in discovering these facts.

Normally, this would require a remand for a hearing for the PCRA court 

to receive evidence, make credibility determinations, and issue findings of fact 

on the issues of Echols’s knowledge and due diligence. However, this is not 

necessary in this instance. We agree with the PCRA court that Echols’s petition 

does not set forth a prima facie case that Pawling’s conviction would entitle 

Echols to relief.

“A PCRA petitioner is not entitled to an evidentiary hearing as a matter 

of right, but only where the petition presents genuine issues of material fact.” 

Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. 2011) (citations omitted). To 

establish that the PCRA court erred in not holding a hearing, Echols “must 

show that he raised a genuine issue of fact which, if resolved in his favor, 

would have entitled him to relief[.]” Commonwealth v. Roney, 79 A.3d 595, 

604 (Pa. 2013). 

The PCRA sets forth seven classes of allegations that establish a right to 

relief. See 42 Pa.C.S.A. § 9543(a)(2). For after-discovered evidence, the 

PCRA provides relief in instances where exculpatory evidence that was 

unavailable at the time of trial would have changed the outcome of the trial if 

it had been introduced. 42 Pa.C.S.A. § 9543(a)(2)(vi). “To be eligible for relief 

under such a 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 
J-S66029-18

- 6 -

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.” Commonwealth v. Johnson, 179 A.3d 1105, 1123 (Pa. 

Super. 2018), appeal denied, 197 A.3d 1174 (Pa. 2018) (citation and internal 

quotation marks omitted).

We note that “an evidentiary hearing is not meant to function as a 

fishing expedition for any possible evidence that may support some 

speculative claim” for PCRA relief. Roney, 79 A.3d at 605 (citation and 

internal quotations omitted). A claim based on pure speculation must fail. See 

id. at 607.

Here, Echols’s claims make several logical leaps to provide a tenuous 

theory of relief. Echols asserts that Pawling’s convictions for tampering with 

evidence and theft from an evidence room create a possibility he tampered 

with evidence gathered while investigating the murder of Keith Shelton. See 

Petition, 10/10/17, at 5. From this unsubstantiated guess, Echols then 

surmises Pawling removed a black football jersey, worn by Shelton at the time 

of his death, from evidence. See id. On top of these assumptions, Echols 

asserts the jersey would have had gunshot residue on it. He believes the 

presence of the residue would have supported his claim that Shelton died while 

struggling with Echols, which in turn would have supported a claim of selfdefense. See id.
J-S66029-18

- 7 -

Echols’s bases his claim on multiple layers of speculation. He 

hypothesizes, without any evidence, that Pawling modified evidence in any of 

his investigations. See Appellant’s Brief, at 9. He then supposes that Pawling 

removed Shelton’s black jersey from evidence in this case. See id. at 18. He 

further guesses the jersey would have had gunshot residue on it. Finally, he 

concludes this evidence would not only have convinced him to present his selfdefense claim to the jury, but that it also would have persuaded the jury to 

credit his self-defense claim.

This chain of supposition is insufficient for several reasons. First and 

foremost, it consists of mere speculation. In addition, it is important to note 

that Echols was aware of the missing jersey at the time of trial. Therefore, the 

absence of the jersey does not constitute after-discovered evidence. He would 

also have been aware of his version of how Shelton died. He therefore would 

have had the knowledge necessary to argue the Commonwealth “lost” the 

jersey because it was exculpatory. 

In other words, Echols was free to argue to the jury that the absence of 

the jersey supported his claim of self-defense, even without Pawling’s 

unrelated convictions. For all these reasons, Echols has not established that 

Pawling’s subsequent convictions, the after-discovered evidence at issue here, 

would have impacted his counseled decision to not present his claim of selfdefense to the jury.
J-S66029-18

- 8 -

Accordingly, we agree with the PCRA court that Echols did not present 

a genuine issue of material fact in his petition. We therefore affirm the order 

dismissing the petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/19