Commonwealth v. Burton
| Decision Date | 15 July 2014 |
| Docket Number | No. 1459 WDA 2013,J-S39012-14,1459 WDA 2013 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHAWN LAMAR BURTON, Appellant |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 27, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
Shawn Lamar Burton (Appellant) appeals pro se from the order entered September 19, 2012, denying as untimely his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We conclude that Appellant's petition satisfies an exception to the one-year time requirement of the PCRA. Accordingly, we vacate the PCRA court's order and remand for an evidentiary hearing.
In September 1993, a jury convicted Appellant of first-degree murder and conspiracy in connection with the strangulation death of Seth Floyd in the Allegheny County Jail. Thereafter, the court imposed the mandatorysentence of life imprisonment. Appellant's co-defendant, Melvin Goodwine, was convicted of conspiracy but acquitted of the murder charge.
Appellant timely appealed from the judgment of sentence, and this Court affirmed. See Commonwealth v. Burton, 688 A.2d 1225 (Pa. Super. 1996) (unpublished memorandum). On August 15, 1997, the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Burton, 700 A.2d 437 (Pa. 1997). Appellant did not petition the United States Supreme Court for writ of certiorari.
In August 1998, Appellant filed pro se his first PCRA petition. Counsel was appointed but subsequently withdrew due to a disagreement with Appellant. Appellant proceeded pro se. Thereafter, the PCRA court dismissed his petition in April 2000. New counsel was appointed and effectuated an appeal, which was dismissed in November 2001 for failure to file a brief. However, counsel successfully sought reinstatement of Appellant's appellate rights nunc pro tunc and timely appealed.
On review, the PCRA court's failure to conduct an on-the-record colloquy to determine whether Appellant properly waived his right to his first PCRA counsel resulted in remand by this Court and further proceedings below not relevant to this appeal. Eventually, the PCRA court again denied Appellant's first petition in December 2005. This Court affirmed, see Commonwealth v. Burton, 924 A.2d 688 (Pa. 2007) (unpublished memorandum), and the Pennsylvania Supreme Court denied Appellant'spetition for allowance of appeal. See Commonwealth v. Burton, 936 A.2d 39 (Pa. 2007).
On May 30, 2013, Appellant purportedly received a letter from the Pennsylvania Innocence Project (dated May 23, 2013). Enclosed with the letter were copies of (1) a motion to expunge criminal record filed by co-defendant Melvin Goodwine in July 2009, and (2) a court opinion thereafter denying the motion. In his motion to expunge, Goodwine averred that (1) he (Goodwine) killed Seth Floyd in self-defense, (2) he was advised not to use this defense at trial, and (3) as a result, an innocent man went to jail for a crime that he committed. Based upon these court records, the Innocence Project letter suggested that Appellant pursue collateral relief.
On July 11, 2013, Appellant filed pro se his second PCRA petition. On August 6, 2013, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. On August 27, 2013, it dismissed the petition. Appellant responded untimely to the court's Rule 907 notice on September 9, 2013. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued an opinion.
Appellant raises the following issues on appeal:
We review an order denying a petition under the PCRA to determine whether the findings of the PCRA court are supported by the evidence of record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Preliminarily, however, we must address the timeliness of Appellant's petition, as it implicates our jurisdiction. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions seeking collateral relief must be filed within one year of the date the judgment of sentence becomes final. Id. There are three statutory exceptions:
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
Here, Appellant's judgment of sentence became final on November 13, 1997, ninety days after the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (); U.S.Sup.Ct.R. 13 () (effective May 1, 1997). Appellant had until November 13, 1998, to file a timely PCRA petition. Thus, his July 2013 petition was patently untimely.
In the course of presenting his first three issues on appeal, Appellant acknowledges that his petition was untimely but asserts that he qualifies forboth the governmental interference and the "after-discovered facts" exceptions.1
Appellant claims that the contents of co-defendant Goodwine's motion to expunge constitutes exculpatory evidence, inappropriately withheld from Appellant in violation of Brady v. Maryland, 373 U.S. 83 (1963). According to Appellant, this alleged Brady violation interfered with his ability to file his petition previously. Inexplicably, the PCRA court did not address Appellant's assertion of governmental interference. Nevertheless, we conclude that Appellant's contention is without merit.
Although a Brady violation may fall within the governmental interference exception, the petitioner must plead and prove [1] the failure to previously raise the claim was the result of interference by government officials, and [2] the information could not have been obtained earlier with the exercise of due diligence.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008); Commonwealth v. Chester, 895 A.2d 520, 523-24 (Pa. 2006).
Here, the content of Goodwine's motion to expunge was a matter of public record. Therefore, Appellant cannot establish that the Commonwealth, or the PCRA court, had exclusive control over the purportedly exculpatory evidence or that the Commonwealth denied himaccess to this evidence. See Chester, 895 A.2d at 524. Moreover, any delay in fulfilling an obligation to disclose this evidence to Appellant would not have affected the timeliness of his PCRA petition. Goodwine filed his motion in July 2009, whereas any timely PCRA petition from Appellant had to be filed by November 13, 1998. Thus, the government did not interfere with Appellant's ability to file his petition timely.
However, that does not end our analysis, as we must also address Appellant's contention that his reliance upon the content of Goodwine's motion meets the after-discovered evidence exception. We conclude that it does.2
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