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Commonwealth v. Burton

Supreme Court of Pennsylvania

March 28, 2017


          SUBMITTED: September 9, 2016

         Appeal from the Order of the Superior Court entered August 25, 2015 at No. 1459 WDA 2013, vacating the Order of the Court of Common Pleas of Allegheny County entered August 27, 2013 at Nos. CP-02-CR-0004017-1993 and CP-02-CR-0004276-1993 and remanding the case.


          TODD JUSTICE.

         In this discretionary appeal by the Commonwealth, we consider whether the presumption that information of public record cannot be considered "unknown" for purposes of proving the newly-discovered facts exception to the time requirements of the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546, applies to pro se petitioners who are incarcerated. For the reasons discussed below, we hold that the presumption does not apply to pro se prisoner petitioners, and so we affirm the Superior Court's order remanding the matter to the trial court for further proceedings.

         I. Factual and procedural background

         On March 9, 1993, at approximately 12:15 p.m., Officer Gary Fluman, a correctional officer at the Allegheny County Jail, received a report from an inmate that there was a problem on Range 17, in the East Block of the jail. After requesting back- up, Officer Fluman approached Cell 17-S. A group of inmates was gathered outside the cell and advised Officer Fluman that someone was under the bed and would not come out. Initially, Officer Fluman could see only the mattress and bedding, but, when he entered the cell and removed the mattress and bedding, he observed that inmate Seth Floyd had a ligature consisting of a shoe lace and a piece of nylon cord tied around his neck; the other end of the ligature was tied to a chain that holds the bed to the wall. Officer Fluman could not detect a pulse, and another officer who had arrived on the scene radioed for a doctor. A third officer cut the ligature, and the doctor unsuccessfully attempted to revive Floyd. Following an autopsy, it was determined that Floyd died as a result of asphyxiation due to ligature strangulation, and the manner of death was listed as pending due to suspicious circumstances.

         During their investigation into Floyd's death, correctional officers interviewed several inmates. One inmate reported that he was walking past Floyd's cell on his way to lunch and observed Appellee Shawn Burton and another individual, Melvin Goodwine, engaged in conversation with Floyd inside his cell. When confronted with this information, Goodwine admitted that he had been in Floyd's cell for a short time. Appellee, however, denied being in the vicinity of Floyd's cell around the time of Floyd's death, and, in fact, denied ever being in Floyd's cell. Appellee later admitted that he was near Floyd's cell at the time he died, but maintained that he had never been inside Floyd's cell.

         Two other inmates reported that, a few minutes before Floyd was found dead, they observed Appellee and Goodwine in Floyd's cell, wrestling him onto his bunk and pinning him while he struggled to free himself. One of these two witnesses also stated that, shortly after he observed the physical altercation among Appellee, Goodwine, and Floyd, he saw Appellee and Goodwine run down the stairs, away from the area of Floyd's cell. Another witness reported that, a few days before Floyd's death, he overheard a conversation between Appellee and Goodwine in which Appellee told Goodwine that they needed to "fix that guy from California." Affidavit for Criminal Complaint against Shawn Burton, 3/19/93, at 2. The witness explained that it is common knowledge in prison that the term "fix" means kill. Id. Further, it was confirmed that Floyd originally was from California, having recently moved to the Pittsburgh area. Based on the above evidence, Appellee and Goodwine were charged with Floyd's murder.

         Appellee and Goodwine were tried jointly before the Honorable Donna Jo McDaniel. On September 28, 1993, Appellee was convicted of first-degree murder[1] and conspiracy, [2] and Goodwine was convicted of conspiracy. Appellee was sentenced to a mandatory term of life imprisonment; Goodwine was sentenced to 5 to 10 years imprisonment. Appellee appealed his judgment of sentence, which was affirmed by the Superior Court. Commonwealth v. Burton, 688 A.2d 1225 (Pa. Super. filed Nov. 8, 1996) (unpublished memorandum). This Court denied his petition for allowance of appeal on August 15, 1997. Commonwealth v. Burton, 700 A.2d 437 (Pa. 1997).

         On August 4, 1998, Appellee filed his first pro se PCRA petition, asserting various claims of ineffective assistance of counsel. After a series of procedural irregularities not relevant herein, Appellee filed an amended PCRA petition on October 5, 2005. The PCRA court dismissed Appellee's amended PCRA petition on December 12, 2005, and the Superior Court ultimately affirmed the PCRA court's dismissal on February 21, 2007. Commonwealth v. Burton, 924 A.2d 688 (Pa. Super. filed Feb. 21, 2007) (unpublished memorandum), [3] appeal denied, 936 A.2d 39 (Pa. 2007).

         On May 30, 2013, Appellee received a letter from Charlotte Whitmore, a staff attorney with the Pennsylvania Innocence Project. The letter, dated May 23, 2013, included a copy of a pro se "Motion for Partial Expunction of Adult Criminal Record" (hereinafter "Motion to Expunge") filed by Goodwine on July 29, 2009. In the Motion to Expunge, Goodwine asserted that he murdered Floyd "in self defense, " but was "advised not to use this defense at trial." Motion to Expunge, at 2 ¶ 4. Goodwine further averred in the motion that "an innocent man went to jail for a crime that [Goodwine] committed." Id. ¶ 5. According to Attorney Whitmore, she received copies of the Motion to Expunge and the trial court's subsequent opinion denying the motion from Twyla Bivins, who claimed to have received the documents from Goodwine's ex-girlfriend. In her letter to Appellee, Attorney Whitmore explained that the Innocence Project had not yet determined whether it would become involved in Appellee's case, but advised him that, if he was not previously aware of the averments made by Goodwine in his Motion to Expunge, Appellee had 60 days to file a PCRA petition based on this "new evidence." Letter to Shawn Burton from Charlotte Whitmore, 5/23/13, at 1.

         On July 11, 2013, Appellee filed pro se a second PCRA petition asserting, inter alia, that Goodwine's Motion to Expunge and the statements contained therein constituted newly-discovered exculpatory evidence that was unavailable at the time of his trial and which would have changed the outcome of his trial if the evidence had been introduced, citing, inter alia, this Court's decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), and referencing the exception to the PCRA's time limitations set forth at 42 Pa.C.S. § 9545(b)(1)(ii). On August 6, 2013, the PCRA court issued notice of its intention to dismiss Appellee's petition without a hearing pursuant to Pa.R.Crim.P. 907 on the grounds that it was untimely; that Appellee failed to aver any exceptions to the PCRA's time requirements; that the petition was patently frivolous and without support on the record; that there were no genuine issues concerning any material fact; and that no purpose would be served by an evidentiary hearing.[4] On August 21, 2013, Appellee filed a response to the PCRA court's Rule 907 notice, [5] and six days later, the PCRA court dismissed Appellee's PCRA petition as "patently frivolous and without support on the record." PCRA Court Order, 8/27/2013.

         Appellee filed a timely appeal to the Superior Court, and complied with the PCRA court's instruction to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his 1925(b) statement, Appellee claimed, inter alia, that he qualified for an exception to the PCRA's time limitations pursuant to 42 Pa.C.S. § 9545(b)(1)(ii), which provides that, where "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, " a petition may be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(1)(ii). In its Rule 1925(a) opinion in support of its dismissal of Appellee's petition, the PCRA court held that, "because [Appellee's] Petition was untimely filed and . . . he failed to properly aver any exceptions to the time-limitation provisions" of the PCRA, the court did not have jurisdiction to address the petition. Commonwealth v. Burton, 2013 WL 10257593, at *1 (Pa. Common Pleas Allegheny Cty. filed Nov. 4, 2013).

         In July 2014, in an unpublished memorandum opinion, a divided panel of the Superior Court vacated the PCRA court's order and remanded for an evidentiary hearing. The Commonwealth filed a timely application for reargument en banc, which the Superior Court granted, and the Superior Court withdrew its panel decision.

         On August 25, 2015, in a published opinion authored by President Judge Emeritus John Bender, the en banc Superior Court vacated the PCRA court's order dismissing Appellee's second PCRA petition, and remanded for an evidentiary hearing. Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015) (en banc). The majority[6]first observed that, because Appellee's judgment of sentence became final on November 13, 1997, he had until November 13, 1998 to file a PCRA petition, and, thus, the instant petition was facially untimely.[7] However, as Appellee asserted that he qualified for an exception to the PCRA's time limitations under subsection 9545(b)(1)(ii), in that the statements contained in Goodwine's Motion to Expunge were unknown to him and could not have been discovered earlier with the exercise of due diligence, the majority proceeded to consider "the appropriate level of diligence required of an untimely PCRA petitioner." Burton, 121 A.3d at 1068.

         Relying on, inter alia, this Court's decisions in Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010) (in the context of a Rule 600 motion, holding due diligence "does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort"), and its own decisions in Commonwealth v. Davis, 86 A.3d 883 (Pa. Super. 2014), [8] and Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en banc), [9] the majority concluded that "due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief." Burton, 121 A.3d at 1071.[10]

         The majority recognized that this Court has held that "publicly available information cannot predicate a timeliness exception beyond the 60-day grace period defined in Section 9545(b)(2)." Id. (citing Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (information revealing a potential conflict on the part of defense counsel was on file with the clerk of courts before defendant was convicted; as such, the information was publicly available and did not support the "newly-discovered evidence" exception to the PCRA); Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (trial counsel's arrest for DUI within days of his court appearance on behalf of petitioner was a matter of public record and thus was not "unknown" to petitioner for purposes of the "newly discovered evidence" exception to the PCRA); Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (Pa. 2000) (suggesting that statistics contained in a study of the Philadelphia criminal justice system were of public record and could not be said to have been unknown)).

         However, the majority opined that "the rule is not absolute. It must adhere to the statutory language of Section 9545. The requirement is that Section 9545(b)(1)(ii) facts are 'unknown to the petitioner.'" Burton, 121 A.3d at 1071 (emphasis original). The majority suggested that, while the presumption regarding public records is "reasonable when . . . petitioner retains access to public information, such as when a petitioner is represented by counsel, " a pro se petitioner, who likely is incarcerated, [11] does not have access to information otherwise readily available to the public, and, indeed, is "no longer a member of the public." Id. at 1072 (citing 42 Pa.C.S. § 9543(a)(1)). Quoting at length from our decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), wherein we held that the public record presumption does not apply to PCRA prisoners who are abandoned by their counsel, the majority reasoned: "[i]f our Supreme Court [in Bennett] has recognized expressly that, without the benefit of counsel, we cannot presume a petitioner has access to information contained in his own public, criminal docket, then surely it cannot be that we presume a pro se petitioner's access to public information contained elsewhere." Burton, 121 A.3d at 1073. Accordingly, the majority held that "the presumption of access to information available in the public domain does not apply where the untimely PCRA petitioner is pro se." Id.

         The majority additionally concluded that there was no factual record developed by the PCRA court to support its rejection of Appellee's assertion that he first learned of the statements Goodwine made in his Motion to Expunge when he received the letter from the Innocence Project in May 2013. Suggesting that Appellee's diligence "may be sufficient, " the majority held that Appellee raised genuine issues of material fact which warranted an evidentiary hearing, and remanded the matter. Id. at 1073-74.[12]

         Judge Judith Olson, joined by President Judge Susan Peikes Gantman and Judge Jacqueline Shogan, dissented. Suggesting that this Court's case law holding that public records cannot be considered "unknown" for purposes of the newly-discovered facts exception "leaves no room for concepts of relaxed vigilance or diminished diligence, " Judge Olson stated:

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.

Id. at 1076-77 (Olson, J., dissenting) (citing Commonwealth v. Williams, 35 A.3d 44 (Pa. Super. 2011)). In Judge Olson's view, by failing to allege any specific steps he took to uncover Goodwine's Motion to Expunge, Appellee failed to demonstrate why he could not have discovered the information earlier with the exercise of due diligence, and, thus, failed to raise a genuine issue of material fact that entitled him to a hearing. Burton, 121 A.3d at 1078.

         Judge Olson further offered that, because the majority exempted Appellee from the public records doctrine "based solely upon his pro se status, not what he did to uncover any allegedly unknown facts, " and, because "[n]early every petitioner" who invokes the exception will be incarcerated and/or pro se, "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 claims." Id. at 1078-79.

         The dissent also maintained that "the Majority's blanket conclusion that all pro se petitioners lack access to public records rests on unsubstantiated assumptions." Id. at 1079. According to the dissent, "[i]ncarcerated individuals (whether pro se 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." Id. The dissent posited that, by "exempt[ing] all pro se petitioners" from the public records presumption, the majority "favors pro se petitioners over other members of the potential PCRA petitioner class without a rational basis, " and "incentivizes petitioners to forego the retention of counsel, even if it is within their means." Id. at 1080. The dissent characterized the majority's approach as an impermissible reallocation of the burdens of pleading and proof in PCRA petitions to the Commonwealth, without any guidance "as to how subjective elements factor into the due diligence inquiry." Id. at 1081.

         With regard to the majority's reliance on Bennett, the dissent stated:

Bennett . . . 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 public record where the prisoner's only means of access to the information was restricted by counsel's abandonment.

Id. at 1084 n.9.

         The dissent distinguished Bennett from the instant case on the basis that Goodwine's Motion to Expunge "resided on a public trial docket, available to all who sought it." Id. It noted that Appellee "offered no explanation for why he could not obtain" the Motion to Expunge, and, further, that because Appellee acted pro se from the beginning of the instant proceedings, he never had an expectation of counsel's assistance and thus Bennett does not apply. Id. Finally, the dissent concluded that the circumstances underlying the instant case "were more than sufficient to trigger an investigation" by Appellee, such that he failed to establish the newly-discovered facts exception to the PCRA. Id. at 1075.

         The Commonwealth sought allowance of appeal, and, on April 6, 2016, this Court granted review of the following issue:

Does Superior Court's published en banc decision contravene established precedent in concluding a hearing was necessary to determine whether [Appellee] acted with due diligence in invoking the after-discovered facts exception to [the] time bar by (1) creating an exception for pro se petitioners to the long-standing rule presuming that publicly available information cannot be deemed unknown for purposes of 42 Pa.C.S.A. § 9545(b)(1)(ii) where a petition has been filed beyond 60 days of the date the information entered the public domain, and by (2) shifting the burden of pleading and proof to the Commonwealth under such circumstances?

Commonwealth v. Burton, 134 A.3d 446 (Pa. 2016) (order).[13]

         II. Analysis

         Pursuant to 42 Pa.C.S. § 9545(b)(1), any PCRA petition, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final. The PCRA's time restrictions are jurisdictional in nature, and a court may not entertain untimely PCRA petitions. Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008). However, Section 9545(b)(1) provides three exceptions to the general time requirements of the PCRA:

(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). As noted previously, to qualify for any of the exceptions to the PCRA's one-year time limitation, including the newly-discovered facts exception under subsection 9545(b)(1)(ii), the exception must be pled within 60 days of the date the claim could have been presented. Id. § 9545(b)(2).

         As a preliminary matter, we find it necessary to address, once again, the appropriate terminology for referring to the exception set forth in subsection 9545(b)(1)(ii). At one time, this Court referred to subsection 9545(b)(1)(ii) as the "after-discovered evidence" exception. See, e.g., Commonwealth v. Johnson, 863 A.2d 423 (Pa. 2004). However, as we acknowledged in Bennett, such reference was a "misnomer, since the plain language of subsection (b)(1)(ii) does not require the petitioner to allege and prove a claim of 'after-discovered evidence.'" 930 A.2d at 1270. Indeed, "[b]y imprecisely referring to this subsection as the 'after-discovered evidence' exception, we have ignored its plain language, " and "erroneously engrafted Brady-like considerations into our analysis of subsection (b)(1)(ii)." Id.[14] We further observed that our decision in Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005), should have dispelled "[a]ny confusion created by the mislabeling" of subsection 9545(b)(1)(ii):

In Lambert, the appellant raised a number of Brady claims and alleged that the court had jurisdiction over his claims under subsection (b)(1)(ii). The Commonwealth urged us to follow a similar analysis to that set forth in [Commonwealth v. Johnson, 863 A.2d 423 (Pa. 2004)], arguing that appellant must establish a meritorious Brady claim in order to fall within an exception set forth in subsections (b)(1)(i)-(iii). In rejecting the Commonwealth's argument, we made clear that the exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the underlying claim. Rather, "the exception merely requires that the 'facts' upon which such a claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence." Lambert, 884 A.2d at 852. Therefore, our opinion in Lambert indicated that the plain language of subsection (b)(1)(ii) is not so narrow as to limit itself to only claims involving "after-discovered evidence." Rather, subsection (b)(1)(ii) has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) "the facts upon which the claim was predicated were unknown" and (2) could not have been ascertained by the exercise of due diligence." 42 Pa.C.S. § 9545(b)(1)(ii)(emphasis added). If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection. See Lambert, supra.

Bennett, 930 A.2d at 1271-72 (emphasis original).

         Thus, generally, the exception to the PCRA's time requirements set forth in subsection 9545(b)(1)(ii) is now referred to as the "newly-discovered fact" exception. See Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016); Mitchell, 141 A.3d at 1282 n.4; Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa. 2016); Medina, 92 A.3d at 1216, 1224. While, on occasion, some courts have used a variation of this phrase, see, e.g., Taylor, 67 A.3d at 1248 ("There are three exceptions to the timeliness requirement, including an exception for newly-discovered evidence."), Burton, 121 A.3d at 1071 ("Also relevant to our disposition is the nature of the after-discovered facts relied upon by Appellant."), the phrase "newly-discovered fact" timeliness exception, in our view, most accurately reflects the requirements of subsection 9545(b)(1)(ii), and is the least likely to be confused with the after-discovered evidence eligibility-for-relief provision set forth in subsection 9543(a)(2). Thus, for purposes of clarity and consistency, we encourage courts to utilize the phrase "newly-discovered fact(s)" when referring to the timeliness exception provided under subsection 9545(b)(1)(ii).

         Turning our attention to the instant case, in dismissing Appellee's PCRA petition as ...

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