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 Appe llant properly invoked the newly-discovered facts exception to the one-yea r 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 inv oked the newly-discovered facts exception and foregoes consi deration of Appellant’s alternate claim that he validly asserted the govern mental interference exception. See Majority Opinion at 4, n.1. As I believe that Appe llant failed to plead and prove that the newly-discovered facts exception applies, I would address Appellant’s government interference c laim and hold that it is meritless. (Footnote Continued Next Page)J-E04008-14

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this result, the Majority holds that all pro se petitioners are exempt from the “public records” rule, which presumes that a petiti on 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 informati on 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 classif ies petitioners, like Appellant, according to who they are, while at the same time fails to consider what they do to acquire supposedly new fac ts. In addition, the Majority’s new approach improperly shifts the burde ns of pleading and proof (Footnote Continued) _______________________ Appellant’s governmental interference claim asserts that the contents of Melvin Goodwine’s expungement motion constitutes ex culpatory evidence that the Commonwealth improperly withheld from him in violation of Brady v. Maryland , 373 U.S. 83 (1963). Appellant, however, does notcontend that the Commonwealth had exclusive control over th e information found in Goodwine’s motion papers or that the Commonwealth d enied him access to this information until recently. Moreover, since G oodwine filed his motion with the Allegheny County Department of Court Recor ds, it was equally available to Appellant and the Commonwealth once itentered the public domain. Consequently, Appellant cannot establish t hat interference by governmental officials frustrated any previous effo rt 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 int erference by government officials); Commonwealth v. Chester , 895 A.2d 520, 523-524 (Pa. 2006). Because, in my view, Appellant’s petition is untime ly and no exception applies, I conclude that the PCRA court correctly d eclined to review the substantive merit of Appellant’s collateral claims.J-E04008-14

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on collateral review to the Commonwealth, without i nterpretive guidance as to how any recently recognized “subjective consider ations” factor into the due diligence inquiry. Lastly, as I shall explain below, the circumstances of this case were more than sufficient to trigger an i nvestigation by Appellant. Thus, I believe that the Majority’s broad, unpreced ented, and unworkable exception to settled Supreme Court precedent consti tutes a sharp and improper departure from settled law. For each of t hese reasons, I would affirm the denial of collateral relief in this case since I believe that prevailing Pennsylvania precedent firmly supports the PCRA cou rt’s dismissal order. I begin with a review of the PCRA court’s determin ations and the undisputed legal principles that govern this case. The PCRA court rejected the claim that the contents of Goodwine’s motion we re unknown to Appellant. See PCRA Court Opinion, 11/4/13, at 5. In addition, th e court rejected Appellant’s argument that his May 2013 rec eipt of the Pennsylvania Innocence Project’s letter triggered the 60-day per iod referenced in § 9545(b)(2). Id . Instead, the court concluded that the 2009 filing of Goodwine’s motion, and its concomitant entry into t he public domain, triggered § 9545(b)(2)’s 60-day period governing th e time within which a petition invoking a timeliness exception must be su bmitted. See id . (“Given the specific facts and circumstances of this case, there is no reasonable argument that the purported exculpatory evidence co ntained in Goodwine’s [m]otion could not have been discovered at least by2009 if not earlier.”).J-E04008-14

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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 app eal, find ample support within our appellate case law. To succeed in pleading and proving a timeliness ex ception under § 9545(b)(1)(ii), 2 Appellant must demonstrate that “the facts upon wh ich [his] claim is predicated were unknown to [him] and could not have been

____________________________________________ 2 Because Appellant’s petition is manifestly untimel y, 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 t he result of interference by government officials with the prese ntation of the claim in violation of the Constitution or laws of t his Commonwealth or the Constitution or laws of the Uni ted States; (ii) the facts upon which the claim is predicated w ere unknown to the petitioner and could not have been ascertain ed 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 State s or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to app ly retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a ny 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 presente d. 42 Pa.C.S.A. § 9545(b)(2).J-E04008-14

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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 learne d 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 withi n 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 prov e that the information on which he relies could not have been obtained earlie r, 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 i n 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 consis tently held that he must file his petition within 60 days from the emer gence of a “fact” into theJ-E04008-14

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public domain. Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013) (information reflecting potential conflict of inter est 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 petitio n was filed; therefore, information was publicly available and newly-discov ered facts exception did not apply); Commonwealth v. Lopez , 51 A.3d 195, 198 (Pa. 2012) ( per curiam ) (information related to defense counsel’s discipl inary issues was publicly available seven years before defendant’s t rial 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 drivi ng under the influence was a matter of public record ten years b efore 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 practic e law did not constitute a newly-discovered fact since information was publicl y available 11 years before defendant filed PCRA petition). This line of cases establishes beyond doubt that “m atters of public record [such as docketed trial court filings] are not unknown ” and thus “[do] not meet the requirement [that] the informati on be unknown at the time the petition was filed” for purposes of the ne wly-discovered facts exception. See e.g. Taylor, 67 A.3d 1248-1249 (emphasis added). Thus,J-E04008-14

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where public information is cited as the basis for invoking § 9545(1)(ii), our Supreme Court’s objective interpretation of the new ly-discovered facts exception leaves no room for concepts of relaxed vi gilance or diminished diligence, even if long periods have elapsed betwee n public disclosure and conviction, direct appeal, or a petition for collat eral relief. Indeed, because a PCRA petitioner carries the burden to plead and pro ve that a timeliness exception applies, a fair reading of the case law c learly requires a petitioner to comb, regularly and routinely, through public so urces in order to locate potentially exculpatory materials and come forward with a detailed explanation as to why an untimely request for colla teral relief should be addressed. See Williams , 35 A.3d at 53 (espousing strict enforcement of the petitioner’s duty to employ due diligence to pr otect his interests and requiring explanation as to why new facts could nothave been uncovered earlier). 3

____________________________________________ 3 The Majority’s opinion attempts to sidestep this b inding precedent by suggesting that “th[is] rule is not absolute” and t hat “[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), quoting42 Pa.C.S.A. § 9545(b)(1)(ii). The suggestion tha t our Supreme Court’s unambiguous declarations somehow excluded P CRA petitioners does not withstand scrutiny. As even the learned Majori ty acknowledges, Taylor squarely held that “matters of public record are no t 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 n ot unknown to anyone, particularly PCRA petitioners ( pro seand represented alike). To whom, apart from PCRA petitioners such as Appellant, coul d the Supreme Court have been referring in formulating this rule? Rath er than applying the (Footnote Continued Next Page)J-E04008-14

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The undisputed facts in this case lead inexorably t o the conclusion that Appellant failed to invoke the newly-discovered fac ts exception. Goodwine filed his expungement motion with the Allegheny Cou nty Department of Court Records in 2009. Four years passed before Ap pellant 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 t he alleged exculpatory material entered the public sphere defeats his atte mpt to invoke the exception found at § 9545(b)(1)(ii). The Majority does not, and cannot, dispute these un contested 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-s ettled precedent, however, the Majority formulates an exception for pro se petitioners that threatens to swallow this deeply rooted principle. To invoke th e exception found at § 9545(b)(1)(ii), the Majority first points out tha t 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 t hat a subjective component is part and parcel of the standard of diligence. N evertheless, the “subjective element” that the Majority injects into our due dil igence 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 P CRA jurisprudence that has consistently espoused objective criteria when i nterpreting § 9545(b)(1)(ii).J-E04008-14

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fact-sensitive and dependent upon the circumstances .” Majority Opinion at 12. The Majority reasons that, in assessing Appell ant’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

casesfrom our Supreme Court’s public records rule since they “do[] not have access to information otherwise available to t he public” and lack the connection to public documents that retained or app ointed counsel could provide. Id . at 16. The Majority concludes that, because pro se prisoners are no longer members of the public, “the presumpti on of access to information in the public domain does not apply whe re the untimely PCRA petitioner is pro se .” Id . at 17-18. Applying this newly-minted standard, the Majority finds that Appellant may have exercise d due diligence. Id . at 18. For several reasons, I am unable to agree with this approach. As a preliminary matter, under Pennsylvania Rule of Crim inal 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 i ssues concerning any material fact, the defendant is not entitled to pos t-conviction collateral relief, and no legitimate purpose would be served by any fu rther proceedings.”J-E04008-14

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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 i ts 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 s et forth in [§] 9545(b)(1)(ii) requires a petitioner to demonst rate he did not know the facts upon which he based his petition and could no t have learned those facts earlier by the exercise of due diligence.” Commonwealth v. Brown , 111 A.3d 171, 176 (Pa. Super. 2015). We strictly e nforce 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 exp ungement motion. As such, Appellant never explained why he could not have previously discovered the new facts with the exercise of due d iligence. Accordingly, Appellant failed to raise a genuine issue of fact t hat would entitle him to a hearing and his petition was subject to summary den ial. In vacating the PCRA court’s dismissal order, the M ajority effectively jettisons the requirement to plead and prove a dili gent inquiry, insofar as the rule applies to pro se petitioners. Although the Majority declares its preference for a comprehensive and fact-specific ap proach to assessing dueJ-E04008-14

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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 reli es. Indeed, Appellant’s incarcerated and pro se status hardly distinguishes the present case from any other in which an untimely petition asserts a t imeliness exception. Nearly every petitioner who invokes the exception found at § 9545(b)(1)(ii) in order to litigate an untimely petition will be i ncarcerated. This is because serving a sentence is a prerequisite for eligibilit y for collateral relief. 42 Pa.C.S.A. § 9543(a)(1)(i). In addition, an overwhe lming 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 distingui sh the present case from any other in which the newly-discovered facts excep tion is invoked, much less counter the undisputed conclusion that Appella nt did nothing for four years while Goodwine’s motion lingered in the publi c domain. It is difficult to conceive of a petition more deficient in pleadin g 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 entit led to a hearing on theirJ-E04008-14

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claims since comprehensive fact-finding, tailored t o suit the pro se petitioner’s particular circumstances, is now requi red. Second, the basis of the Majority’s blanket conclus ion 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 dili gence analysis is similarly flawed. The Majority observes that while “public r ecords [are] presumptively knowable,” this assumption does not hold for pro se petitioners who are often incarcerated because they are no longer membe rs of the public. Majority Opinion at 16. Here, the Majority infer s, 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 Appella nt, or others who are similarly situated, to discover public information such as the contents of Goodwine’s expungement motion. Incarcerated indivi duals (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 th at 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 p ublic.”). Indeed, it is these unsubstantiated assumptions that lead the Maj ority to reject clear Supreme Court precedent and shift the burdens of pl eading 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).J-E04008-14

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or represented by counsel) reside in prisons, not o ff-the-grid islands. Prisons within this Commonwealth have law libraries , computer terminals, internet access, and legal aid assistance. It is u nsurprising, then, that in the closely related context of petitions that invoke ne wly-recognized constitutional rights under § 9545(b)(1)(iii), this Court routinely denies relief
to pro se , incarcerated petitioners where, among other thing s, they fail to file their petitions within 60 days of the date a c ourt 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 und er § 9545(b)(1)(iii) because “the [60-]day period [began] to run upon th e 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 publ ic domain is at least as

____________________________________________ 5 I realize, of course, that legal decisions are notfacts 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 fo rmulate a special accessed-based accommodation for pro se petitioners in cases invoking timeliness exceptions under the PCRA, as the Majori ty has done in the instant matter.J-E04008-14

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sporadic and unpredictable as the emergence of newl y-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 f rustrated any investigative effort he undertook. Third, the Majority’s approach creates different cl asses of petitioners without fact-based justification. In this case, th e 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 PC RA 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 proba tion, 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 treat ment 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 thi s Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”). In stead, I would followJ-E04008-14

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an approach that considers whether, consistent with settled precedent, a petition pleads and proves due diligence or explain s why new facts could not have been uncovered with the exercise of due dilige nce, as the PCRA contemplates. In part, the Majority rationalizes the adoption of its new rule by asserting that the Commonwealth is free to come for ward with proof that Appellant possessed access to public records such a s Goodwine’s expungement motion. Majority Opinion at 19 (“Absen t evidence demonstrating Appellant’s access to the contents of Goodwine’s criminal docket, the public records rule does not apply.”) a nd n.7 (“The Commonwealth is free, of course, to adduce evidence sufficient to establish [access to public records]. When it does, a PCRA c ourt can engage in a real, fact-based inquiry. A finding of access may well p reclude a petitioner from invoking the [newly]-discovered facts exception to the PCRA timeliness requirement (just as the general public records rul e works where the petitioner is represented by counsel).”). I do notbelieve that this answers the questions relating to due diligence raised by t his appeal. In truth, the Majority’s reallocation of the burden of proof in P CRA cases is a poor compromise for its election to relax the diligence expected of a pro se petitioner who seeks relief years after the deadlin e for filing a petition has passed.J-E04008-14

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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. Wi thout qualification, our Supreme Court has made this point unmistakably clea r: “We have repeatedlystated it is the [petitioner’s] burden to allege a nd prove that one of the timeliness exceptions applies.” Commonwealth v. Edmiston , 65 A.3d 339, 346 (Pa. 2013) (citation omitted) (emp hasis 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 h is 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 fo r four years to discover publicly available information generated by Goodwin e, 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 withou t offering interpretiveJ-E04008-14

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guidance as to how subjective elements factor into the due diligence inquiry. The Majority allows the Commonwealth to adduce evid ence to establish a
pro se petitioner’s access to public information, but doe s not explain precisely what the Commonwealth must demonstrate in order to satisfy its new burden. For example, to establish sufficient a ccess to public information, must the Commonwealth prove 60 continu ous days of access to an open prison library, an available prison legal a ide, a working computer system, and a serviceable internet connection capab le of accessing public court dockets? If so, must the Commonwealth also p rove that these resources were available at times when the petition er 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? Her e, the Commonwealth will have to prove access to public information for a specific petitioner at a specific facility 6 extending approximately five years into the past. In future cases, will the Commonwealth need to prove access a s far as 10 or 15 years into the past? The pro se exception adopted by the Majority is not limited t o recently-disclosed public information; hence, the s cope and contours of this new duty imposed upon the Commonwealth under the Ma jority’s ruling is entirely undefined and potentially quite onerous. The difficulties in

____________________________________________ 6 Of course, proving access to public information fo r petitioners who have been transferred during their time in prison or who have relocated while on parole or probation will present challenges that ar e more complicated for the Commonwealth.J-E04008-14

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implementing such a potentially far-reaching duty m ilitate strongly in favor of continuing to follow our Supreme Court’s objecti ve approach to interpreting § 9545(b)(1)(ii). Finally, the Majority’s suggestion that Appellant h ad “no reason” to initiate an inquiry is unavailing. In support of i ts determination that nothing compelled Appellant to investigate exculpatory fact s generated by Goodwine, the Majority relies heavily on the timing and conte nts of Goodwine’s motion. See Majority Opinion at 18-19. In particular, the Majo rity 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 whet her Goodwine may have disclosed potentially exculpatory information regar ding 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. Re lying on these allegations, the Majority concludes that, “Goodwine’s silence attrial (and his acquittal of the murder charges) eliminated any reasonable expec tation [on the part of Appellant] that [Goodwine] would, thereafter, publi cly acknowledge his guilt.” Majority Opinion at 18. Ultimately, the M ajority concludes that Appellant had “no reason to seek out facts in suppo rt of a claim for collateral relief.” Id .J-E04008-14

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The Majority also finds fault with the PCRA court’s assessments relating to the factors that could have triggered A ppellant’s investigation of exculpatory facts. First, the Majority criticizes the PCRA court’s refusal to credit Appellant’s claim that the Pennsylvania Inno cence 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 know n previously that Goodwine murdered Seth Floyd because the jury convi cted both men of conspiracy. Id . Here, the Majority rejects the PCRA court’s concl usions in light of Appellant’s claims of innocence and the ab sence 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 bel ow, I find an ample basis on which to conclude that Appellant had every reaso n to be particularly vigilant of Goodwine’s criminal record filings sinc e 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, Alleghen y County CorrectionalJ-E04008-14

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Officers, and several inmates at the jail. Correct ional Officer Gary Fluman testified that on March 9, 1993, at approximately 1 2:15 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 th roat with a ligature that was attached to a chain that held the bed to the wa ll. 7 Id . The officer did not detect a pulse. Id . Dr. Leon Rozin, a forensic pathologist with the All egheny County Coroner’s Office, testified regarding his findings following an autopsy on Floyd’s body. In addition to minor injuries, Dr. R ozin observed signs showing the use of a ligature on Floyd, including e mbedded markings on the victim’s neck. N.T., 9/24/93, at 694-703. Based u pon his examination, Dr. Rozin concluded that Floyd died as a result of asph yxiation that could have resulted from the ligatures placed around Floyd’s n eck. 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 b ed sheet and strands from a mop. Id . at 376-377. Detective Tallent also recovered a se cond 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 m atching right shoe was located on the floor of Floyd’s cell. Id . There were no shoelaces in the black athletic shoes. Id .J-E04008-14

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kill the victim through strangulation but that he w ould have lost consciousness after the first or second minute. Id . at 703. Micah Goodman was among the inmates who testified t hat he saw Appellant, Goodwine, and Floyd engaged in what he t hought 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, Go odman observed Appellant and Goodwine running down the steps in th e jail. Id . at 501. A second inmate, Marvin Harper, confirmed Goodman’s t estimony. He testified that as he walked past Floyd’s cell, he heard scuff ling inside and saw two men, whom he identified at trial as Appellant and G oodwine, struggling with a third man on a bed. Id . Edwin Wright, a third inmate, identified Appellan t and Goodwine as being in Floyd’s cell around luncht ime on the day of the murder. Id . at 449-450. Inmate Gregory McKinney testified tha t 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 thoug h he had committed suicide. Id . at 619; N.T., 9/24/93, at 628. Inmate Warren Parr ott testified that, ten to 14 days before Floyd’s murder, he over heard Appellant talking with Goodwine about deferring a transfer so that th ey could get together and “fix” a situation that had arisen with an individua l from California, referring to Floyd. N.T., 9/23/93, at 528-546. Parrott unde rstood this conversationJ-E04008-14

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between Appellant and Goodwine as a plan to kill Fl oyd. Id . at 546. In addition, inmate William Johnson described Appellan t and Goodwine as “partners” who were in each other’s company “all th e 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 de termination 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 sin ce familiarity with the case will likely assist the proper administration o f justice.” Commonwealth
v. Martorano , 89 A.3d 301, 307 (Pa. Super. 2014). Here, the PC RA court presided over the joint trial of Appellant and Good wine and had the opportunity to hear the testimony of the Commonweal th’s 19 witnesses, including medical experts, investigating detectives , jail guards, inmates, and others. This evidence, transcribed in over 1000 pa ges of trial testimony, overwhelmingly established Appellant’s direct parti cipation in Floyd’s ligature strangulation, as well his involvement in a crimina l conspiracy to commit murder with Goodwine. The definitive proof of Appe llant’s guilt, of which the PCRA court was undoubtedly aware, warranted the cou rt’s skepticism toward Appellant’s professed lack of knowledge about the t iming and content of Goodwine’s criminal filing. In the face of such an abundant record, I cannotJ-E04008-14

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fault the PCRA court for using its extensive knowle dge 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 testim ony that linked Appellant and Goodwine, I also believe that our rec ent decisions, on which the Majority heavily relies, do not support the con clusion 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 witnes s for the Commonwealth, met the newly-discovered facts exception. Central to our conclusion was the fact that the petitioner first learned of the witne ss’ recantation on or after October 18, 2006 when the witness transferred to th e same prison facility that housed the petitioner and informed him of poli ce coercion. Medina , 92 A.3d at 1217-1218. There was no other source for t he 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 wit ness’ recantation. Id .J-E04008-14

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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 a nd 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 gav e him license to make exculpatory disclosures without risk of criminal pr osecution. 8 Combining Appellant’s awareness of this fact with the precise factual posture of this case, Goodwine was the most, if not the sole, promi sing source of exculpatory evidence supportive of Appellant’s inno cence claim. This considerably narrowed the scope of Appellant’s info rmation search from “the entirety of the public domain” to the criminal dock et filings of his former criminal confederate, Goodwine. Since Appellant ha d 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 Uni ted States and Pennsylvania Constitutions, as well as under Pennsy lvania Crimes Code, a second prosecution for the same offense after acqui ttal is prohibited.” Commonwealth v. DeLong , 879 A.2d 234, 238 (Pa. Super. 2005), appeal denied , 889 A.2d 1213 (Pa. 2005).J-E04008-14

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and (ii) where he acted diligently under the circum stances 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 infor mation within the public domain, the petitioner nevertheless acted with due diligence under the circumstances since neither the witness nor the tra nscripts could be found. Id . In addition, focusing exclusively on the petition er’s trial in Davis , the petitioner had no reason to know of enticements bes towed upon the witness by the Commonwealth. These facts distinguish Davisin 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 pub lic court docket, as evidenced by its recovery through the efforts of th e 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 e ntitled to relief. Bennett , however, never involved an express holding that pet itioners are entitled to special, access-based accommodations where they lac k the benefit of counsel. Instead, the Supreme Court concluded thatan order dismissing the petitioner’s first PCRA appeal was only a public re cord in the broadest sense because such orders are not sent directly to the pr isoner but only to counsel on the assumption that counsel will inform his clie nt of the court’s action. The Court then noted that the logic of this assumpt ion breaks down where counsel abandons his client. Thus, the Court decli ned to treat the order as a (Footnote Continued Next Page)J-E04008-14

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For each of the foregoing reasons, I would hold th at 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 ti me-bar. Therefore, in my view, the PCRA court correctly determined that it l acked jurisdiction to consider Appellant's substantive claims. According ly, I dissent. President Judge Gantman and Judge Shogan join this dissenting opinion.

(Footnote Continued) _______________________ public record where the prisoner’s only means of ac cess to the information was restricted by counsel’s abandonment. Id . at 1266. That is not the situation before us. Here, Goodwin es’ expungement motion resided on a public trial court docket, available t o all who sought it. A third party, the Pennsylvania Innocence Project, recovere d the document and transmitted it to Appellant. Appellant has offered no explanation for why he could not obtain Goodwines’ expungement papers as t he Pennsylvania Innocence Project did. Hence, the concern that con fronted our Supreme Court in Bennett

is simply not present here. Appellant, unlike Ben nett, 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 app lication where the petitioner initiates the proceedings pro se and expects to continue in that capacity. The Majority’s approach effectively allows Appellan t to transfer hisduty 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 app licable deadlines have passed. I believe that such an approach is entirel y inconsistent with prevailing interpretations of the PCRA’s timeliness requirements.