J-A26042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHN JACKSON

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

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* Retired Senior Judge assigned to the Superior Court.
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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 
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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.
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Based on the foregoing, I respectfully dissent as to the holding regarding

Dixon’s affidavit. In all other respects, I join the learned Majority.