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 Appellant properly invoked 

the newly-discovered facts exception to the one-year 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 invoked the 

newly-discovered facts exception and foregoes consideration of Appellant’s 

alternate claim that he validly asserted the governmental interference 

exception. See Majority Opinion at 4, n.1. As I believe that Appellant failed 

to plead and prove that the newly-discovered facts exception applies, I 

would address Appellant’s government interference claim and hold that it is 

meritless. 

(Footnote Continued Next Page) 
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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 petition 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 information 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 classifies petitioners, like 

Appellant, according to who they are, while at the same time fails to 

consider what they do to acquire supposedly new facts. In addition, the 

Majority’s new approach improperly shifts the burdens of pleading and proof 

(Footnote Continued) _______________________ 

Appellant’s governmental interference claim asserts that the contents of 

Melvin Goodwine’s expungement motion constitutes exculpatory evidence 

that the Commonwealth improperly withheld from him in violation of Brady 

v. Maryland, 373 U.S. 83 (1963). Appellant, however, does not contend 

that the Commonwealth had exclusive control over the information found in 

Goodwine’s motion papers or that the Commonwealth denied him access to 

this information until recently. Moreover, since Goodwine filed his motion 

with the Allegheny County Department of Court Records, it was equally 

available to Appellant and the Commonwealth once it entered the public 

domain. Consequently, Appellant cannot establish that interference by 

governmental officials frustrated any previous effort 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 interference by government 

officials); Commonwealth v. Chester, 895 A.2d 520, 523-524 (Pa. 2006). 

Because, in my view, Appellant’s petition is untimely and no exception 

applies, I conclude that the PCRA court correctly declined to review the 

substantive merit of Appellant’s collateral claims.
J-E04008-14 

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on collateral review to the Commonwealth, without interpretive guidance as 

to how any recently recognized “subjective considerations” factor into the 

due diligence inquiry. Lastly, as I shall explain below, the circumstances of 

this case were more than sufficient to trigger an investigation by Appellant. 

Thus, I believe that the Majority’s broad, unprecedented, and unworkable 

exception to settled Supreme Court precedent constitutes a sharp and 

improper departure from settled law. For each of these reasons, I would 

affirm the denial of collateral relief in this case since I believe that prevailing 

Pennsylvania precedent firmly supports the PCRA court’s dismissal order. 

 I begin with a review of the PCRA court’s determinations and the 

undisputed legal principles that govern this case. The PCRA court rejected 

the claim that the contents of Goodwine’s motion were unknown to 

Appellant. See PCRA Court Opinion, 11/4/13, at 5. In addition, the court 

rejected Appellant’s argument that his May 2013 receipt of the Pennsylvania 

Innocence Project’s letter triggered the 60-day period referenced in 

§ 9545(b)(2). Id. Instead, the court concluded that the 2009 filing of 

Goodwine’s motion, and its concomitant entry into the public domain, 

triggered § 9545(b)(2)’s 60-day period governing the time within which a 

petition invoking a timeliness exception must be submitted. See id. (“Given 

the specific facts and circumstances of this case, there is no reasonable 

argument that the purported exculpatory evidence contained in Goodwine’s 

[m]otion could not have been discovered at least by 2009 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 appeal, find ample support 

within our appellate case law. 

 To succeed in pleading and proving a timeliness exception under 

§ 9545(b)(1)(ii),2 Appellant must demonstrate that “the facts upon which 

[his] claim is predicated were unknown to [him] and could not have been 

____________________________________________ 

2

 Because Appellant’s petition is manifestly untimely, 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 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. 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, any 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 presented. 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 learned 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 within 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 prove that the information on 

which he relies could not have been obtained earlier, 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 in 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 consistently held that he 

must file his petition within 60 days from the emergence of a “fact” into the 
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public domain. Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013) 

(information reflecting potential conflict of interest 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 petition was filed; therefore, 

information was publicly available and newly-discovered facts exception did 

not apply); Commonwealth v. Lopez, 51 A.3d 195, 198 (Pa. 2012) (per 

curiam) (information related to defense counsel’s disciplinary issues was 

publicly available seven years before defendant’s trial 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 driving under the 

influence was a matter of public record ten years before 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 practice law did not constitute a 

newly-discovered fact since information was publicly available 11 years 

before defendant filed PCRA petition). 

This line of cases establishes beyond doubt that “matters of public 

record [such as docketed trial court filings] are not unknown” and thus 

“[do] not meet the requirement [that] the information be unknown at the 

time the petition was filed” for purposes of the newly-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 newly-discovered facts 

exception leaves no room for concepts of relaxed vigilance or diminished 

diligence, even if long periods have elapsed between public disclosure and 

conviction, direct appeal, or a petition for collateral relief. Indeed, because a 

PCRA petitioner carries the burden to plead and prove that a timeliness 

exception applies, a fair reading of the case law clearly requires a petitioner 

to comb, regularly and routinely, through public sources in order to locate 

potentially exculpatory materials and come forward with a detailed 

explanation as to why an untimely request for collateral relief should be 

addressed. See Williams, 35 A.3d at 53 (espousing strict enforcement of 

the petitioner’s duty to employ due diligence to protect his interests and 

requiring explanation as to why new facts could not have been uncovered 

earlier).3

____________________________________________ 

3

 The Majority’s opinion attempts to sidestep this binding precedent by 

suggesting that “th[is] rule is not absolute” and that “[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),

quoting 42 Pa.C.S.A. § 9545(b)(1)(ii). The suggestion that our Supreme 

Court’s unambiguous declarations somehow excluded PCRA petitioners does 

not withstand scrutiny. As even the learned Majority acknowledges, Taylor

squarely held that “matters of public record are not 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 not unknown to anyone, 

particularly PCRA petitioners (pro se and represented alike). To whom, 

apart from PCRA petitioners such as Appellant, could the Supreme Court 

have been referring in formulating this rule? Rather than applying the 

(Footnote Continued Next Page) 
J-E04008-14 

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The undisputed facts in this case lead inexorably to the conclusion that 

Appellant failed to invoke the newly-discovered facts exception. Goodwine 

filed his expungement motion with the Allegheny County Department of 

Court Records in 2009. Four years passed before Appellant 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 the alleged exculpatory 

material entered the public sphere defeats his attempt to invoke the 

exception found at § 9545(b)(1)(ii). 

The Majority does not, and cannot, dispute these uncontested 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-settled precedent, however, 

the Majority formulates an exception for pro se petitioners that threatens to 

swallow this deeply rooted principle. To invoke the exception found at 

§ 9545(b)(1)(ii), the Majority first points out that 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 that a subjective component 

is part and parcel of the standard of diligence. Nevertheless, the “subjective 

element” that the Majority injects into our due diligence 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 PCRA jurisprudence that 

has consistently espoused objective criteria when interpreting 

§ 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 Appellant’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 

cases from our Supreme Court’s public records rule since they “do[] not 

have access to information otherwise available to the public” and lack the 

connection to public documents that retained or appointed counsel could 

provide. Id. at 16. The Majority concludes that, because pro se prisoners 

are no longer members of the public, “the presumption of access to 

information in the public domain does not apply where the untimely PCRA 

petitioner is pro se.” Id. at 17-18. Applying this newly-minted standard, 

the Majority finds that Appellant may have exercised due diligence. Id. at 

18. 

For several reasons, I am unable to agree with this approach. As a 

preliminary matter, under Pennsylvania Rule of Criminal 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 issues concerning any 

material fact, the defendant is not entitled to post-conviction collateral relief, 

and no legitimate purpose would be served by any further 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 its 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 set forth in 

[§] 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.” Commonwealth v. Brown, 

111 A.3d 171, 176 (Pa. Super. 2015). We strictly enforce 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 expungement motion. As 

such, Appellant never explained why he could not have previously 

discovered the new facts with the exercise of due diligence. Accordingly, 

Appellant failed to raise a genuine issue of fact that would entitle him to a 

hearing and his petition was subject to summary denial. 

In vacating the PCRA court’s dismissal order, the Majority effectively 

jettisons the requirement to plead and prove a diligent inquiry, insofar as the 

rule applies to pro se petitioners. Although the Majority declares its 

preference for a comprehensive and fact-specific approach to assessing due 
J-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 relies. Indeed, Appellant’s 

incarcerated and pro se status hardly distinguishes the present case from 

any other in which an untimely petition asserts a timeliness exception. 

Nearly every petitioner who invokes the exception found at § 9545(b)(1)(ii) 

in order to litigate an untimely petition will be incarcerated. This is because 

serving a sentence is a prerequisite for eligibility for collateral relief. 42 

Pa.C.S.A. § 9543(a)(1)(i). In addition, an overwhelming 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 distinguish the present case from 

any other in which the newly-discovered facts exception is invoked, much 

less counter the undisputed conclusion that Appellant did nothing for four 

years while Goodwine’s motion lingered in the public domain. It is difficult 

to conceive of a petition more deficient in pleading 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 entitled to a hearing on their 
J-E04008-14 

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claims since comprehensive fact-finding, tailored to suit the pro se 

petitioner’s particular circumstances, is now required. 

Second, the basis of the Majority’s blanket conclusion 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 diligence analysis is similarly 

flawed. The Majority observes that while “public records [are] presumptively 

knowable,” this assumption does not hold for pro se petitioners who are 

often incarcerated because they are no longer members of the public. 

Majority Opinion at 16. Here, the Majority infers, 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 Appellant, or others who are 

similarly situated, to discover public information such as the contents of 

Goodwine’s expungement motion. Incarcerated individuals (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 that 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 public.”). Indeed, it is 

these unsubstantiated assumptions that lead the Majority to reject clear 

Supreme Court precedent and shift the burdens of pleading 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 off-the-grid islands. 

Prisons within this Commonwealth have law libraries, computer terminals, 

internet access, and legal aid assistance. It is unsurprising, then, that in the 

closely related context of petitions that invoke newly-recognized 

constitutional rights under § 9545(b)(1)(iii), this Court routinely denies relief 

to pro se, incarcerated petitioners where, among other things, they fail to 

file their petitions within 60 days of the date a court 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 under § 9545(b)(1)(iii) 

because “the [60-]day period [began] to run upon the 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 public domain is at least as 

____________________________________________ 

5

 I realize, of course, that legal decisions are not facts 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 formulate a special 

accessed-based accommodation for pro se petitioners in cases invoking 

timeliness exceptions under the PCRA, as the Majority has done in the 

instant matter. 
J-E04008-14 

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sporadic and unpredictable as the emergence of newly-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 frustrated any investigative 

effort he undertook. 

Third, the Majority’s approach creates different classes of petitioners 

without fact-based justification. In this case, the 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 PCRA 

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 probation, 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 treatment 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 this Court to fashion ad 

hoc equitable exceptions to the PCRA time-bar[.]”). Instead, I would follow 
J-E04008-14 

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an approach that considers whether, consistent with settled precedent, a 

petition pleads and proves due diligence or explains why new facts could not 

have been uncovered with the exercise of due diligence, as the PCRA 

contemplates. 

In part, the Majority rationalizes the adoption of its new rule by 

asserting that the Commonwealth is free to come forward with proof that 

Appellant possessed access to public records such as Goodwine’s 

expungement motion. Majority Opinion at 19 (“Absent evidence 

demonstrating Appellant’s access to the contents of Goodwine’s criminal 

docket, the public records rule does not apply.”) and n.7 (“The 

Commonwealth is free, of course, to adduce evidence sufficient to establish 

[access to public records]. When it does, a PCRA court can engage in a real, 

fact-based inquiry. A finding of access may well preclude a petitioner from 

invoking the [newly]-discovered facts exception to the PCRA timeliness 

requirement (just as the general public records rule works where the 

petitioner is represented by counsel).”). I do not believe that this answers 

the questions relating to due diligence raised by this appeal. In truth, the 

Majority’s reallocation of the burden of proof in PCRA cases is a poor 

compromise for its election to relax the diligence expected of a pro se

petitioner who seeks relief years after the deadline for filing a petition has 

passed. 
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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. Without qualification, our 

Supreme Court has made this point unmistakably clear: “We have 

repeatedly stated it is the [petitioner’s] burden to allege and prove that 

one of the timeliness exceptions applies.” Commonwealth v. Edmiston, 

65 A.3d 339, 346 (Pa. 2013) (citation omitted) (emphasis 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 his 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 for four years to discover 

publicly available information generated by Goodwine, 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 without offering interpretive 
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guidance as to how subjective elements factor into the due diligence inquiry. 

The Majority allows the Commonwealth to adduce evidence to establish a 

pro se petitioner’s access to public information, but does not explain 

precisely what the Commonwealth must demonstrate in order to satisfy its 

new burden. For example, to establish sufficient access to public 

information, must the Commonwealth prove 60 continuous days of access to 

an open prison library, an available prison legal aide, a working computer 

system, and a serviceable internet connection capable of accessing public 

court dockets? If so, must the Commonwealth also prove that these 

resources were available at times when the petitioner 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? Here, the Commonwealth 

will have to prove access to public information for a specific petitioner at a 

specific facility6 extending approximately five years into the past. In future 

cases, will the Commonwealth need to prove access as far as 10 or 15 years 

into the past? The pro se exception adopted by the Majority is not limited to 

recently-disclosed public information; hence, the scope and contours of this 

new duty imposed upon the Commonwealth under the Majority’s ruling is 

entirely undefined and potentially quite onerous. The difficulties in 

____________________________________________ 

6

 Of course, proving access to public information for petitioners who have 

been transferred during their time in prison or who have relocated while on 

parole or probation will present challenges that are more complicated for the 

Commonwealth. 
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implementing such a potentially far-reaching duty militate strongly in favor 

of continuing to follow our Supreme Court’s objective approach to 

interpreting § 9545(b)(1)(ii). 

Finally, the Majority’s suggestion that Appellant had “no reason” to 

initiate an inquiry is unavailing. In support of its determination that nothing 

compelled Appellant to investigate exculpatory facts generated by Goodwine, 

the Majority relies heavily on the timing and contents of Goodwine’s motion. 

See Majority Opinion at 18-19. In particular, the Majority 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 whether Goodwine may have 

disclosed potentially exculpatory information regarding 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. Relying on these allegations, 

the Majority concludes that, “Goodwine’s silence at trial (and his acquittal of 

the murder charges) eliminated any reasonable expectation [on the part of 

Appellant] that [Goodwine] would, thereafter, publicly acknowledge his 

guilt.” Majority Opinion at 18. Ultimately, the Majority concludes that 

Appellant had “no reason to seek out facts in support of a claim for collateral 

relief.” Id.
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The Majority also finds fault with the PCRA court’s assessments 

relating to the factors that could have triggered Appellant’s investigation of 

exculpatory facts. First, the Majority criticizes the PCRA court’s refusal to 

credit Appellant’s claim that the Pennsylvania Innocence 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 known previously that 

Goodwine murdered Seth Floyd because the jury convicted both men of 

conspiracy. Id. Here, the Majority rejects the PCRA court’s conclusions in 

light of Appellant’s claims of innocence and the absence 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 below, I find an ample basis 

on which to conclude that Appellant had every reason to be particularly 

vigilant of Goodwine’s criminal record filings since 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, Allegheny County Correctional 
J-E04008-14 

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Officers, and several inmates at the jail. Correctional Officer Gary Fluman 

testified that on March 9, 1993, at approximately 12:15 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 throat with a ligature that 

was attached to a chain that held the bed to the wall.7 Id. The officer did 

not detect a pulse. Id. 

Dr. Leon Rozin, a forensic pathologist with the Allegheny County 

Coroner’s Office, testified regarding his findings following an autopsy on 

Floyd’s body. In addition to minor injuries, Dr. Rozin observed signs 

showing the use of a ligature on Floyd, including embedded markings on the 

victim’s neck. N.T., 9/24/93, at 694-703. Based upon his examination, Dr. 

Rozin concluded that Floyd died as a result of asphyxiation that could have 

resulted from the ligatures placed around Floyd’s neck. 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 bed sheet and strands 

from a mop. Id. at 376-377. Detective Tallent also recovered a second 

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 matching 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 would have lost 

consciousness after the first or second minute. Id. at 703. 

Micah Goodman was among the inmates who testified that he saw 

Appellant, Goodwine, and Floyd engaged in what he thought 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, Goodman observed 

Appellant and Goodwine running down the steps in the jail. Id. at 501. A 

second inmate, Marvin Harper, confirmed Goodman’s testimony. He testified 

that as he walked past Floyd’s cell, he heard scuffling inside and saw two 

men, whom he identified at trial as Appellant and Goodwine, struggling with 

a third man on a bed. Id. Edwin Wright, a third inmate, identified Appellant 

and Goodwine as being in Floyd’s cell around lunchtime on the day of the 

murder. Id. at 449-450. Inmate Gregory McKinney testified that 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 though he had committed 

suicide. Id. at 619; N.T., 9/24/93, at 628. Inmate Warren Parrott testified 

that, ten to 14 days before Floyd’s murder, he overheard Appellant talking 

with Goodwine about deferring a transfer so that they could get together and 

“fix” a situation that had arisen with an individual from California, referring 

to Floyd. N.T., 9/23/93, at 528-546. Parrott understood this conversation 
J-E04008-14 

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between Appellant and Goodwine as a plan to kill Floyd. Id. at 546. In 

addition, inmate William Johnson described Appellant and Goodwine as 

“partners” who were in each other’s company “all the 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 determination 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 since familiarity with the 

case will likely assist the proper administration of justice.” Commonwealth 

v. Martorano, 89 A.3d 301, 307 (Pa. Super. 2014). Here, the PCRA court 

presided over the joint trial of Appellant and Goodwine and had the 

opportunity to hear the testimony of the Commonwealth’s 19 witnesses, 

including medical experts, investigating detectives, jail guards, inmates, and 

others. This evidence, transcribed in over 1000 pages of trial testimony, 

overwhelmingly established Appellant’s direct participation in Floyd’s ligature 

strangulation, as well his involvement in a criminal conspiracy to commit 

murder with Goodwine. The definitive proof of Appellant’s guilt, of which the 

PCRA court was undoubtedly aware, warranted the court’s skepticism toward 

Appellant’s professed lack of knowledge about the timing and content of 

Goodwine’s criminal filing. In the face of such an abundant record, I cannot 
J-E04008-14 

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fault the PCRA court for using its extensive knowledge 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 testimony that linked 

Appellant and Goodwine, I also believe that our recent decisions, on which 

the Majority heavily relies, do not support the conclusion 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 witness for the Commonwealth, 

met the newly-discovered facts exception. Central to our conclusion was the 

fact that the petitioner first learned of the witness’ recantation on or after 

October 18, 2006 when the witness transferred to the same prison facility 

that housed the petitioner and informed him of police coercion. Medina, 92 

A.3d at 1217-1218. There was no other source for the 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 witness’ recantation. Id. 
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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 and 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 gave him license to make 

exculpatory disclosures without risk of criminal prosecution.8 Combining 

Appellant’s awareness of this fact with the precise factual posture of this 

case, Goodwine was the most, if not the sole, promising source of 

exculpatory evidence supportive of Appellant’s innocence claim. This 

considerably narrowed the scope of Appellant’s information search from “the 

entirety of the public domain” to the criminal docket filings of his former 

criminal confederate, Goodwine. Since Appellant had 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 United States and 

Pennsylvania Constitutions, as well as under Pennsylvania Crimes Code, a 

second prosecution for the same offense after acquittal is prohibited.” 

Commonwealth v. DeLong, 879 A.2d 234, 238 (Pa. Super. 2005), appeal 

denied, 889 A.2d 1213 (Pa. 2005). 
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and (ii) where he acted diligently under the circumstances 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 information within the public 

domain, the petitioner nevertheless acted with due diligence under the 

circumstances since neither the witness nor the transcripts could be found. 

Id. In addition, focusing exclusively on the petitioner’s trial in Davis, the 

petitioner had no reason to know of enticements bestowed upon the witness 

by the Commonwealth. These facts distinguish Davis in 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 public court docket, as 

evidenced by its recovery through the efforts of the 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 entitled to relief. Bennett, 

however, never involved an express holding that petitioners are entitled to 

special, access-based accommodations where they lack the benefit of 

counsel. Instead, the Supreme Court concluded that an order dismissing the 

petitioner’s first PCRA appeal was only a public record in the broadest sense 

because such orders are not sent directly to the prisoner but only to counsel 

on the assumption that counsel will inform his client of the court’s action. 

The Court then noted that the logic of this assumption breaks down where 

counsel abandons his client. Thus, the Court declined to treat the order as a 

(Footnote Continued Next Page) 
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 For each of the foregoing reasons, I would hold that 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 time-bar. Therefore, in my 

view, the PCRA court correctly determined that it lacked jurisdiction to 

consider Appellant's substantive claims. Accordingly, I dissent. 

President Judge Gantman and Judge Shogan join this dissenting 

opinion. 

(Footnote Continued) _______________________ 

public record where the prisoner’s only means of access to the information 

was restricted by counsel’s abandonment. Id. at 1266. 

That is not the situation before us. Here, Goodwines’ expungement motion 

resided on a public trial court docket, available to all who sought it. A third 

party, the Pennsylvania Innocence Project, recovered the document and 

transmitted it to Appellant. Appellant has offered no explanation for why he 

could not obtain Goodwines’ expungement papers as the Pennsylvania 

Innocence Project did. Hence, the concern that confronted our Supreme 

Court in Bennett is simply not present here. Appellant, unlike Bennett, 

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 application where the 

petitioner initiates the proceedings pro se and expects to continue in that 

capacity. 

The Majority’s approach effectively allows Appellant to transfer his duty 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 applicable deadlines have 

passed. I believe that such an approach is entirely inconsistent with 

prevailing interpretations of the PCRA’s timeliness requirements.