Commonwealth v. Burton

• Decision Date: 25 August 2015
• Docket Number: No. 1459 WDA 2013,1459 WDA 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Shawn Lamar BURTON, Appellant.
• Court: Pennsylvania Superior Court

121 A.3d 1063

2015 PA Super 176

COMMONWEALTH of Pennsylvania, Appellee

v.Shawn Lamar BURTON, Appellant.

No. 1459 WDA 2013

Superior Court of Pennsylvania.

Submitted Dec. 3, 2014.

Filed Aug. 25, 2015.

Shawn L. Burton, appellant, pro se.

Karen T. Edwards, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN, MUNDY, OLSON and OTT, JJ.

Opinion

OPINION BY BENDER, P.J.E.:

Shawn Lamar Burton (Appellant) appeals pro se from the order entered August 27, 2013, 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 the record before us is insufficient to determine whether Appellant's petition satisfies the after-discovered facts exception to the one-year time requirement of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(ii). In so doing, we clarify the due diligence required of untimely petitioners and recognize a limited exception to the “public records” rule, which presumes that petitioners have access to information available in the public domain. 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 mandatory sentence 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 See Commonwealth v. Burton, 455 Pa.Super. 691, 688 A.2d 1225 (1996) (unpublished memorandum). On August 15, 1997, the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Burton, 549 Pa. 696, 700 A.2d 437 (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, ––– Pa. ––––, 924 A.2d 688 (2007) (unpublished memorandum), and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. See Commonwealth v. Burton, 594 Pa. 702, 936 A.2d 39 (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. Nevertheless, Appellant timely appealed and filed a court-ordered Pa.R.A.P.1925(b) statement. The PCRA court issued an opinion.

In July 2014, a divided panel of this Court vacated the PCRA Court's order and remanded for an evidentiary hearing. The Commonwealth filed a timely application for reargument en banc. We granted the Commonwealth's application and withdrew the July panel memorandum. See Order, 09/08/2014.

Appellant raises the following issues:

[1.] Whether the PCRA court erred in denying [Appellant's] post-conviction petition as untimely filed when [Appellant] established that his [after-discovered facts] claim[ ] [was] within the [plain language of the timeliness exception set forth at] 42 Pa.C.S.A. § 9545(b)(1)(ii) and section 9545(b)(2) ?

[2.] Whether [Appellant] is entitled to a new trial, or remand for an evidentiary hearing based upon the personal documents of Melvin Goodwine['s] admitting that the petitioner did not participate in the crimes charged in this case, which [after-discovered fact] was provided to [Appellant] by Pennsylvania Innocence Project?

[3.] Whether the district attorney's [ ] failure to disclose exculpatory evidence to [Appellant] proving his innocence[ ] violates the prosecutor's obligation under the Fourteenth Amendment's Due Process Clause?

Appellant's Substitute Brief at v-vi.¹

We review an order denying a collateral relief under the PCRA to determine whether evidence of record supports the findings of the PCRA court and whether its legal conclusions are free of error. Commonwealth v. Mitchell, ––– Pa. ––––, 105 A.3d 1257, 1265 (2014). “The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.” Id. (quoting Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 603 (2013) ).

In this case, the PCRA court dismissed Appellant's petition without a hearing. See PCRA Court Order, 08/27/2013, at 1 (citing in support Pa.R.Crim.P. 907 ). There is no absolute right to an evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.Super.2008). On appeal, we examine the issues raised in light of the record “to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing.” Id.

Under the PCRA, all petitions seeking collateral relief must be filed within one year of the date the judgment of sentence becomes final. See Bennett, 930 A.2d at 1267 ; 42 Pa.C.S. § 9545(b)(1). There are three statutory exceptions:

(b) Time for filing petition. —

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(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. § 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) (providing that judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); U.S.Sup.Ct.R. 13 (requiring the filing of a petition for writ of certiorari within 90 days) (effective May 1, 1997). Appellant had until November 13, 1998, to file a timely PCRA petition. Thus, his July 2013 petition was patently untimely.

Appellant acknowledges that his petition was untimely but asserts that he qualifies for the “after-discovered facts” exception to the timeliness requirement. In order to qualify, a petitioner must establish that (1) he did not know the facts upon which he based his petition, and (2) he could not have learned those facts earlier with the exercise of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii). According to Appellant, his reliance upon the contents of Goodwine's motion to expunge meets these requirements. We agree.

Fundamentally, at issue here is the appropriate level of diligence required of an untimely PCRA petitioner. Section (b)(1)(ii) requires “due diligence,” without explanation or definition of the term. This omission poses little difficulty, however, as Pennsylvania courts have interpreted consistently the concept of due diligence in different contexts.

In 1893, for example, reviewing a financial dispute in which the plaintiff failed to collect on a note past due for seven months, the Pennsylvania Supreme Court affirmed a lower court ruling, leaving the question of due diligence to the fact finder. Tissue v. Hanna, 158 Pa. 384, 27 A. 1104, 1105 (1893). The Court noted the following:

A contract [of guaranty] creates only a contingent liability; and it becomes absolute only by due and unsuccessful diligence to obtain satisfaction from the principal, or by circumstances that excuse diligence.... But every case is to be judged by its circumstances.

Id. (emphasis added).

More recently, this Court evaluated the efforts of police officers attempting to locate and apprehend a criminal defendant for speedy trial purposes. Commonwealth v. Hinton, 269 Pa.Super. 43, 409 A.2d 54,...