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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY J. MASON :
:
Appellant : No. 190 WDA 2018
Appeal from the PCRA Order December 21, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004826-1992
BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 29, 2018
Appellant Larry J. Mason appeals pro se from the order denying his serial
Post Conviction Relief Act1 (PCRA) petition seeking relief from his 1994
aggregate sentence of life imprisonment for first-degree murder and firearms
not to be carried without a license.2 Appellant claims that the PCRA court
erred in concluding that he failed to establish that he timely filed his petition
after receiving newly discovered facts. We affirm.
The facts and procedural history related to this appeal are well known
to the parties, and we briefly summarize the relevant portions of the record.
Following a jury trial, the trial court sentenced Appellant to serve life
imprisonment on January 5, 1994. This Court affirmed the judgment of
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 2502(a) and 6106, respectively.
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sentence, and the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Mason, 660 A.2d 655 (Pa. Super.
filed Mar. 10, 1995) (unpublished mem.), appeal denied, 668 A.2d 1127 (Pa.
1995).
In his first PCRA petition, Appellant included several claims related to
Shaina Ballard,3 including (1) trial counsel was ineffective for failing to request
a pretrial lineup; (2) the Commonwealth failed to disclose evidence that
another witness for the Commonwealth threatened Ballard; and (3) the
Commonwealth failed to disclose possible plea agreements with Ballard. Am.
Pet. for Post-Conviction Relief, 4/27/00, at 5-6, 15-18. Appellant’s petition
included Ballard’s January 15, 2000 affidavit asserting that a Commonwealth
witness threatened her before trial. Aff. Shaina Ballard, 1/15/00. On July 25,
2002, this Court affirmed the denial of Appellant’s first PCRA petition without
a hearing, and the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Mason, 808 A.2d 248 (Pa. Super.
filed July 25, 2002) (unpublished mem.), appeal denied, 819 A.2d 546 (Pa.
2003)
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3 At trial, Ballard testified that Appellant shot the victim with a .357 caliber
handgun after another individual stepped forward and kicked the victim. We
also note that Ballard referred herself as Shaina Ballard-Murray in her post-
trial affidavits and has also been referred to as “Shana Ballard.” We refer to
her as Ballard throughout this memorandum.
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In his counseled second PCRA petition, Appellant raised a claim of newly
discovered facts based on Ballard’s June 23, 2003 affidavit that she recognized
Appellant based only on his eyes and that she did not tell the police that
Appellant shot the victim. Pet. for Post-Conviction Relief, 5/22/12; Aff. Shaina
Ballard, 6/23/03. Ballard also stated that she testified at trial that Appellant
was the shooter even though she really did not know who shot the victim.4
Aff. Shaina Ballard, 6/23/03. On October 16, 2013, this Court affirmed the
dismissal of Appellant’s second PCRA petition as untimely. Commonwealth
v. Mason, 87 A.3d 885 (Pa. Super. filed Oct. 16, 2013) (unpublished mem.)
The Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on May 27, 2014. Commonwealth v. Mason, 93 A.3d 462 (Pa.
2014).
Appellant filed the instant pro se petition, which the PCRA court
docketed on June 27, 2017.5 Appellant relied on an investigator’s notes of an
interview of Ballard conducted on April 17, 2017 and Ballard’s witness
statement on April 22, 2017. The PCRA court issued a Pa.R.Crim.P. 907 notice
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4 Appellant also relied on the affidavits of two other individuals who stated
that Appellant was not armed at the time of the murder, that they and
Appellant fled the scene after hearing one gunshot, and that they heard
additional gunshots as they were running from the scene.
5Appellant filed a counseled third PCRA petition seeking resentencing relief
based on Miller v. Alabama, 567 U.S. 132 (2012), and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016). The PCRA court denied relief because
Appellant was twenty years old at the time of the murder. Appellant did not
appeal the denial of his third PCRA petition.
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of intent to dismiss the petition as untimely. Appellant filed a pro se response,
which included Ballard’s supplemental witness statement dated June 28, 2017.
A summary of Ballard’s April 17 and June 28, 2017 statements follows.
On the night of the murder, Appellant was among the group of eight to ten
individuals who entered the decedent’s apartment. Witness Statement,
4/17/17, at 1. Appellant was also one of several of the individuals holding a
gun. Id. Immediately before the shooting, a person in a tan jacket came
between Appellant and the victim. Id. at 1-2. According to Ballard’s 2017
statements, Appellant stated that there was not going to be any shooting and
that he did not go to the apartment to shoot anyone. Id. at 2. Ballard then
heard a shot. Id. Ballard opined that Appellant could not have fired the shot
because the person in the tan jacket was standing between Appellant and the
victim. Id.
Additionally, Ballard averred that police officers pressured her to identify
Appellant as the shooter. First Supp. Witness Statement, 6/28/17, at 2.
Ballard asserted that she identified Appellant at trial as the shooter because
he looked familiar to her and because she saw his picture in the newspaper.
Id. Ballard repeated her assertion that other Commonwealth witnesses, who
were present in the apartment at the time of the shooting, threatened her not
to testify. Witness Statement, 4/17/17, at 2. She stated she made the
Commonwealth aware of those threats. First Supp. Witness Statement,
6/28/17, at 1.
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Ballard explained that she did not give these details in her prior affidavits
because she “was never asked the right questions.” First Supp. Witness
Statement, 6/28/17, at 2. She also asserted that she felt “bad,” was no longer
afraid, and was ready to tell the truth. Witness Statement, 4/17/17, at 2-3.
The PCRA court denied Appellant’s petition on December 22, 2017,
without a hearing. Appellant timely appealed. The court did not order a
Pa.R.A.P. 1925(b) statement, but filed an opinion suggesting that Appellant’s
petition was untimely.
Appellant presents the following question for review:
Did the (PCRA) court err, and commit reversible error when it
failed to recognize a timely presented motion to the court, that
bias pertinent to the due process of the law with regards to final
disposition of a (PCRA) petition under the time requirement of 42
Pa.C.S.A. §9545(b)(2)?
Appellant’s Brief at 3 (full capitalization omitted).
Appellant concedes that the instant petition was untimely on its face.
Appellant, as he did in his PCRA petition and his response to the PCRA court’s
Rule 907 notice, asserts that the alleged newly discovered facts set forth by
Ballard were unknown to him at the time of trial and that he filed within sixty
days of discovering Ballard’s most recent statements. Id. at 6-7. Appellant
avers in a single sentence that he exercised due diligence and cites to
Commonwealth v. Burton, 158 A.3d 618, (Pa. 2017). Id. at 7.
When reviewing the dismissal of a PCRA petition as untimely, our review
is limited to “whether the record supports the PCRA court’s determination and
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whether the PCRA court’s decision is free of legal error.” Commonwealth v.
Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citation omitted).
The principles governing our review are well settled. “[T]he timeliness
of a PCRA petition is a jurisdictional requisite.” Commonwealth v. Brown,
111 A.3d 171, 175 (Pa. Super. 2015). A PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final” unless the petitioner pleads and proves one of three statutory
exceptions. 42 Pa.C.S. § 9545(b)(1).
To successfully raise the newly discovered fact under section
9545(b)(1)(ii), a petitioner must show that: (1) “the facts upon which the
claim was predicated were unknown” and (2) the facts “could not have been
ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii). In
determining whether a petitioner has acted with due diligence, we have
explained that “[d]ue diligence ‘does not require perfect vigilance and
punctilious care, but merely a showing the party has put forth reasonable
effort’ to obtain the information upon which a claim is based.”
Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation omitted).
Additionally, the petitioner must file his petition within sixty days of the date
the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
In Burton, the Pennsylvania Supreme Court held “that information
which is of public record cannot be deemed ‘unknown’ for purposes of
subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.”
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Burton, 158 A.3d at 638. The Burton Court, however, did not relieve a
petitioner from establishing the exercise of due diligence. See id. at 638.
Instantly, Ballard began recanting her trial testimony identifying
Appellant as the shooter as early as 2000 and fully recanted her in-court
identification of Appellant by 2003. Appellant previously litigated a PCRA
petition, his second, based on that recantation.
In her 2017 witness statements, Ballard provided additional details
supporting her assertions that she was threatened and, for the first time,
opined that Appellant was trying to calm the situation and could not have shot
the victim. She explained that she did not provide these details earlier
because she was not asked the right questions. However, Appellant’s instant
PCRA petition contained no allegations that he took any steps to elicit or obtain
the alleged newly discovered facts in the decade and a half since Ballard
initially recanted. Thus, even if Appellant filed his petition within sixty days
of receiving Ballard’s April 2017 statements, Appellant failed to establish that
he exercised reasonable diligence. See Cox, 146 A.3d at 230; accord
Burton, 158 A.3d at 638. Thus, we discern no error in the PCRA court’s
dismissal of Appellant’s fourth PCRA petition. See Lawson, 90 A.3d at 4.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2018
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