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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
SHAWN L. BURTON,
Appellant No. 451 WDA 2018
Appeal from the PCRA Order Entered February 22, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0004017-1993
CP-02-CR-0004276-1993
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 24, 2019
Appellant, Shawn L. Burton, appeals from the post-conviction court’s
February 22, 2018 order denying his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm
in part, vacate in part, and remand for further proceedings consistent with
this decision.
The procedural history of this case is lengthy and complex. Our
Supreme Court summarized part of that history in a prior appeal in this case,
as follows:
On March 9, 1993, at approximately 12:15 p.m., Officer
Gary Fluman, a correctional officer at the Allegheny County Jail,
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* Retired Senior Judge assigned to the Superior Court.
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received a report from an inmate that there was a problem on
Range 17, in the East Block of the jail. After requesting backup,
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 …
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. [Burton], 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. [Burton] 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 [Burton] 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
[Burton], Goodwine, and Floyd, he saw [Burton] 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 [Burton] and Goodwine in
which [Burton] 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
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evidence, [Burton] and Goodwine were charged with Floyd’s
murder.
[Burton] and Goodwine were tried jointly before the Honorable
Donna Jo McDaniel. On September 28, 1993, [Burton] was
convicted of first-degree murder1 and conspiracy,2 and Goodwine
was convicted of conspiracy. [Burton] was sentenced to a
mandatory term of life imprisonment; Goodwine was sentenced to
5 to 10 years[’] imprisonment. [Burton] appealed his judgment of
sentence, which was affirmed by the Superior Court.
Commonwealth v. Burton, 455 Pa. Super. 691, 688 A.2d 1225
(1996) (unpublished memorandum). This Court denied his
petition for allowance of appeal on August 15, 1997.
Commonwealth v. Burton, 549 Pa. 696, 700 A.2d 437 (1997).
1 18 Pa.C.S. § 2502(a).
2 18 Pa.C.S. § 903.
On August 4, 1998, [Burton] filed his first pro se PCRA petition,
asserting various claims of ineffective assistance of counsel. After
a series of procedural irregularities not relevant herein, [Burton]
filed an amended PCRA petition on October 5, 2005. The PCRA
court dismissed [Burton’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), appeal denied, 594 Pa. 702, 936
A.2d 39 (2007).
On May 30, 2013, [Burton] 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.[1] Goodwine further
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1 More specifically, Goodwine stated, in pertinent part:
A requirement of the Pennsylvania Parole Board[] is to accept and
own full responsibility for your crime. … Petitioner committed this
act in self[-]defense. However, I was advised not to use this
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averred in the motion that “an innocent man went to jail for a
crime that [Goodwine] committed.” Id. [at] ¶ 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 [Burton], Attorney
Whitmore explained that the Innocence Project had not yet
determined whether it would become involved in [Burton’s] case,
but advised him that, if he was not previously aware of the
averments made by Goodwine in his Motion to Expunge, [Burton]
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, [Burton] 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, 593 Pa. 382, 930 A.2d
1264 (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
[Burton]’s petition without a hearing pursuant to Pa.R.Crim.P. 907
on the grounds that it was untimely; that [Burton] 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. On
August 21, 2013, [Burton] filed a response to the PCRA court’s
Rule 907 notice, and six days later, the PCRA court dismissed
[Burton’s] PCRA petition as “patently frivolous and without
support on the record.” PCRA Court Order, 8/27/2013.
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defense at trial. … [P]etitioner has already admitted to the Parole
Board that I committed this act on my own in self[-] defense.
Petitioner also admitted and take [sic] full responsibility and
ownership that an innocent man went to jail for a crime that I
committed.
Motion to Expunge at 8 ¶¶ 4, 5 (attached to Burton’s pro se PCRA petition filed
on July 11, 2013 as “Exhibit 2”).
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[Burton] 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, [Burton] 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 [Burton]’s
petition, the PCRA court held that, “because [Burton’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 10257583, 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 [Burton]’s second PCRA
petition, and remanded for an evidentiary hearing.
Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super. 2015)
(en banc) [(Burton I)].
Commonwealth v. Burton, 158 A.3d 618, 620–23 (Pa. 2017) (Burton II)
(some footnotes omitted).
Briefly, the en banc panel of this Court in Burton I rejected the notion
that because Goodwine’s motion to expunge was a public record, we were
constrained, under our Supreme Court precedent, to presume that it could not
be considered “unknown” by Burton. See Burton I, 121 A.3d at 1071-72.
Instead, we opined that such a presumption cannot be reasonably applied to
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pro se, incarcerated petitioners. Id. at 1072-73. Accordingly, the Burton I
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. at 1073. Applying that law to Burton’s case, the Burton I panel concluded
that “without the benefit of an evidentiary record developed below, [Burton’s]
diligence may be sufficient,” and that he had “raise[d] genuine issues of
material fact that warrant development.” Id. Consequently, we vacated the
PCRA court’s order denying Burton’s petition and remanded for an evidentiary
hearing. Id.
The Commonwealth filed a timely petition for allowance of appeal from
our decision in Burton I. On March 28, 2017, our Supreme Court affirmed in
Burton II. Thus, Burton’s case was remanded for an evidentiary hearing to
ascertain, without application of the public-record presumption, whether
Goodwine’s statement in his motion to expunge was unknown to Burton, and
whether he exercised due diligence in discovering it.
Judge McDaniel again presided over the PCRA proceedings on remand.
Before she conducted an evidentiary hearing on Burton’s claim involving
Goodwine, Burton (who had retained Craig Cooley, Esq., to represent him)
filed a “Supplemental Amended PCRA Petition” on September 18, 2017.2
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2 Additionally, Burton also filed an “Amended Second PCRA Petition in the
Alternative Petitioner’s Third PCRA Petition” on May 26, 2017, in which he
alleged newly-discovered evidence of a recantation by Marvin Harper, an
inmate who had testified against Burton at trial. However, while Harper had
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Therein, Burton raised a newly-discovered evidence claim based on an
interview that Burton’s counsel and an investigator with the Pennsylvania
Innocence Project, Zach Stern, had conducted with Brian O’Toole on July 20,
2017. O’Toole was an inmate who had testified against Burton at trial, and
he allegedly recanted that trial testimony in the interview with Attorney Cooley
and Stern.
Judge McDaniel accepted Burton’s supplemental petition and ultimately
conducted a separate evidentiary hearing on February 14, 2018 on Burton’s
claim involving O’Toole, which we discuss further infra. First, however, Judge
McDaniel held an evidentiary hearing on October 5, 2017, to address Burton’s
claims premised on Goodwine’s confession in his motion to expunge.
At that proceeding, Judge McDaniel initially heard evidence regarding
how Burton had discovered Goodwine’s expungement motion. She then
concluded that Burton had not previously known that information, and that he
had acted with due diligence in discovering it, thereby satisfying the timeliness
exception of 42 Pa.C.S. § 9545(b)(1)(ii). See N.T. PCRA Hearing, 10/5/17,
at 48.3
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provided Burton with an affidavit stating his recantation, Harper subsequently
refused to talk to Attorney Cooley to verify the facts in the affidavit. See
Burton’s Brief at 25. Accordingly, Attorney Cooley did not subpoena Harper
to testify on Burton’s behalf at the PCRA hearing conducted on remand. On
appeal, he raises no challenge to the PCRA court’s dismissal of his newly-
discovered evidence claim based on Harper’s recantation. See id.
3 The Commonwealth does not challenge this determination on appeal.
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Judge McDaniel then turned to the merits of the substantive, newly-
discovered evidence claim. In this regard, Attorney Cooley first explained to
the court that he wished to call Goodwine, who was present at the proceeding,
to the stand to testify, but that he was informed Goodwine intended to invoke
his Fifth Amendment right not to testify. N.T. PCRA Hearing, 10/5/17, at 29.
Goodwine’s counsel, who had been appointed by Judge McDaniel, confirmed
that Goodwine intended to exercise his “right to remain silent because his
answers may tend to incriminate him.” Id. at 30. When the Commonwealth
pressed counsel “as to what crime” Goodwine was claiming his testimony
might implicate him, his counsel stated: “Perjury, unsworn falsification to
authorities, and homicide in the federal courts.” Id. Thereafter, Goodwine
took the stand and stated the following as to each question posed about his
motion to expunge: “On the advice of my counsel, I exercise my Fifth
Amendment right to remain silent because my answers may tend to
incriminate me.” Id. at 32-34. The PCRA court accepted Goodwine’s
invocation and excused him from the proceeding. Id. at 34, 35.
Attorney Cooley then admitted Goodwine’s expungement motion
without objection by the Commonwealth. Id. at 35. The parties offered
argument concerning, inter alia, whether that document would be admissible
as substantive evidence if Burton were afforded a new trial and Goodwine
again refused to testify. Attorney Cooley’s position was that Goodwine’s
statements in that document would be admissible as substantive evidence
under the ‘statement against interest’ exception to the rule against hearsay.
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See Pa.R.E. 804(b)(3); see also N.T. PCRA Hearing, 10/5/17, at 43-46. The
Commonwealth did not offer a rebuttal argument.
Ultimately, at the close of the hearing, Judge McDaniel denied Burton’s
newly-discovered evidence claim, explaining her decision, in pertinent part,
as follows:
[The Court]: … [T]here was a prior hearing[,] and I do not have
the day for it[,] where [] Goodwine did testify. I found him not to
be credible. This seems to be, to me at the time, a manufactured
scheme since Goodwine was protected by the double jeopardy
clause and what did he have to lose. He had nothing to lose by
coming in and helping out a fellow inmate or friend o[r] whatever
kind of coconspirator, what kind of relationship they had.
That being said, I have already found [] Goodwine to be
incredible at a prior hearing. He refused to testify today. And I
feel that both of these outweigh a typewritten motion for
expungement and, therefore, the PCRA [petition] as to this issue
is denied.
Id. at 48-49.
Judge McDaniel then scheduled a second evidentiary hearing to address
Appellant’s supplemental PCRA petition raising the O’Toole claim. However,
prior to that hearing, scheduled for February 14, 2018, O’Toole (who is serving
a sentence of life without parole) sent a letter to Judge McDaniel indicating
that he would refuse to testify at the hearing, that it would be a “waste of
time” to transport him to the proceeding, and that his life would be placed in
danger if forced to attend. See Burton’s Brief at 23. O’Toole also sent a letter
to Attorney Cooley indicating that he would not cooperate with the defense.
Id. at 22. Judge McDaniel informed counsel of O’Toole’s letter and expressed
that she planned to cancel the order to transport O’Toole to the hearing.
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However, Judge McDaniel allowed Attorney Cooley to submit objections to the
cancelation, which counsel claims to have sent to Judge McDaniel on February
6, 2018. Id. at 24.
At some point before the February 14, 2018 proceeding, Judge McDaniel
directed that O’Toole’s transportation order be canceled.4 Accordingly, he was
not in attendance at the February 14th hearing. However, his court-appointed
counsel, Phillip C. Hong-Barco, Esq., was present, and verified that O’Toole
would have refused to testify had he been transported to the hearing:
[Attorney Hong-Barco:] I did speak with Mr. O’Toole - who is
incarcerated at SCI Fayette - over the phone last week. He did
reiterate exactly to me what is in his letter, that in no way, shape
or form is he going to be cooperating or answering any questions
related to this case.
I have received and reviewed, obviously, some of the pleadings
in Your Honor’s letter, and I was made aware that Your Honor did
cancel the transportation order. Other than that, he really doesn’t
have anything else to say.
N.T. PCRA Hearing, 2/14/18, at 5-6. While O’Toole was not present to testify
at the hearing, Attorney Cooley was permitted to admit the substance of
O’Toole’s recantation through the testimony of Zach Stern, who explained
what O’Toole had said during the July 20, 2017 interview. Id. at 20-26.
On February 22, 2018, Judge McDaniel entered an order denying
Burton’s petition, and stating that “[a] new trial will not take place.” Order,
2/22/18. Burton filed a timely notice of appeal, and he also timely complied
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4No order canceling O’Toole’s transportation order is contained in the certified
record, but no one disputes that the transportation order was canceled.
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Judge McDaniel’s order to file a Rule 1925(b) concise statement of errors
complained of on appeal. Judge McDaniel issued her Rule 1925(a) opinion on
July 16, 2018. Herein, Burton states two issues for our review:
[I.] Judge McDaniel erred and violated [] Burton’s state and
federal due process rights by rejecting [] Burton’s newly-
discovered fact claim regarding the incriminating statements his
co-defendant, Melvin Goodwine, made in his July 2009
expungement motion. U.S. Const. admts. 5, 6, 8, 14; Pa. Const.
art. I, §§ 8, 9.
[II.] Judge McDaniel erred and violated [] Burton’s due process
rights by striking the transportation order relating to Brien [sic]
O’Toole’s appearance at the February 14, 2018 PCRA hearing.
U.S. Const. admts. 5, 6, 8, 14; Pa. Const. art. I, §§ 8, 9.
Burton’s Brief at 1-2.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
Timeliness
We must begin by addressing the timeliness of Burton’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or subsequent
one, must be filed within one year of the date the judgment of sentence
becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
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(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, at the time Appellant’s petition
was filed, section 9545(b)(2) required that any petition attempting to invoke
one of these exceptions “be filed within sixty days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).5
Here, in regard to Burton’s claim premised on Goodwine’s confession in
his expungement motion, Judge McDaniel concluded that Burton satisfied the
newly-discovered fact exception. The Commonwealth does not challenge that
decision on appeal, and we discern no error in the court’s ruling.
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5An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
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Pertaining to Burton’s claim premised on O’Toole’s recantation, his issue
on appeal solely involves Judge McDaniel’s cancelation of O’Toole’s
transportation order. In other words, we are not asked to evaluate the merits
of Burton’s underlying, newly-discovered evidence claim but, instead, to
examine whether Judge McDaniel abused her discretion procedurally. Judge
McDaniel did not discuss the timeliness of Burton’s O’Toole issue, and the
Commonwealth does not contend that the untimeliness of Burton’s petition
bars our review of the specific claim he presents herein. We conclude that
because Burton filed a timely appeal, we possess jurisdiction to examine Judge
McDaniel’s procedural decision to cancel O’Toole’s transportation order. For
ease of disposition, we will begin by reviewing this claim.
O’Toole Claim
Burton argues that Judge McDaniel abused her discretion by canceling
the transportation order for O’Toole to be brought to the hearing on February
14, 2018. Before we review the merits of his argument, we must address
Judge McDaniel’s conclusion that Burton waived this issue by failing “to
provide the complete record necessary for an evaluation of this claim, namely
the transcript of the February 14, 2018 evidentiary hearing.” PCRA Court
Opinion (PCO), 7/16/18, at 10. In support of finding waiver, Judge McDaniel
relied on Pa.R.A.P. 1911, which states, in pertinent part:
(a) General rule. The appellant shall request any transcript
required under this chapter in the manner and make any
necessary payment or deposit therefor in the amount and
within the time prescribed by Rules 4001 et seq. of the
Pennsylvania Rules of Judicial Administration.
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***
(d) Effect of failure to comply. If the appellant fails to take the
action required by these rules and the Pennsylvania Rules of
Judicial Administration for the preparation of the transcript, the
appellate court may take such action as it deems appropriate,
which may include dismissal of the appeal.
Pa.R.A.P. 1911.
In Burton’s brief, Attorney Cooley offers a detailed discussion of his
efforts to obtain the transcript of the February 14, 2018 hearing, ultimately
arguing that the omission of the transcript from the record before Judge
McDaniel was the fault of the Allegheny County Court Reporter’s Office (CRO).
See Burton’s Brief at 30-32. However, we need not address Attorney Cooley’s
argument in this regard, as we conclude the circumstances of this case do not
warrant waiver of Burton’s O’Toole claim. Clearly, Judge McDaniel canceled
O’Toole’s transportation order after she received his letter on February 1,
2018, and before the February 14, 2018 hearing. Thus, we fail to see why
Judge McDaniel could not explain her rationale for canceling the transportation
order simply because she did not possess the transcript of a hearing that
occurred after that decision was made.
In any event, the transcript of the February 14, 2018 hearing is
contained in the certified record before this Court, and Judge McDaniel clearly
stated her reasons for canceling the transportation order during that
proceeding. See N.T. PCRA Hearing, 2/14/18, at 4-5. Thus, our review of
Judge McDaniel’s decision is not in any way impeded by the fact that she did
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not have the at-issue transcript in drafting her opinion. We will not deem this
issue waived.
Burton claims that Judge McDaniel abused her discretion in canceling
O’Toole’s transportation order for several reasons.6 Initially, we restate the
well-settled principle that “[a]n abuse of discretion is more than just an error
in judgment and, on appeal, the trial court will not be found to have abused
its discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.”
Walsh, 36 A.3d at 620 (citation omitted).
Burton first claims that Judge McDaniel abused her discretion because
her decision to cancel the transportation order was premised on a letter that
was never properly authenticated. He also contends that O’Toole’s reasons
for refusing to testify were vague and inadequate to support Judge McDaniel’s
essentially quashing his subpoena. Additionally, Burton insists that Judge
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6 The parties agree that Burton’s claim is akin to a challenge to a court’s
decision to quash a subpoena, which we review under an abuse-of-discretion
standard. See Commonwealth’s Brief at 49 (arguing that this issue is
“analogous to either the decision to deny a transport order or the decision to
quash a subpoena” and that “[i]n both instances, the appellate standard for
reviewing such decisions is whether the court abused its discretion”) (citing
Commonwealth v. Banks, 946 A.2d 721, 723 (Pa. Super. 2008) (stating
that a “trial court’s ruling on transporting witnesses is abuse of discretion”);
Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012) (“Whether a
subpoena shall be enforced rests in the judicial discretion of the court.”)); see
also Burton’s Brief at 74 (“Whether a subpoena shall be enforced rests in the
trial court’s discretion.”) (citing Branham v. Rohm & Haas Co., 19 A.3d
1094, 1103 (Pa. Super. 2011)). We accept this position by the parties.
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McDaniel erred because her “primary finding for canceling O’Toole’s
transportation order was her finding that O’Toole ‘is totally, 100 percent,
absolutely incredible.’” Burton’s Brief at 75 (quoting N.T. PCRA Hearing,
2/14/18, at 10-11). According to Burton, that credibility determination is not
supported by the record. In sum, Burton contends that he is entitled to an
evidentiary hearing at which he can “confront O’Toole and question him under
oath regarding the truthfulness of his trial testimony and July 20, 2017
statement” to Attorney Cooley and Zach Stern. Id. at 76.
Having carefully considered the record in this case and Burton’s
arguments, we conclude that no relief is due. Burton asks this Court to
remand his case for a new PCRA hearing at which O’Toole will be subpoenaed
to testify. See id. at 77. However, O’Toole has clearly expressed that he will
not cooperate or testify on Burton’s behalf. O’Toole’s refusal to testify was
not solely conveyed in his letter to Judge McDaniel that Burton challenges as
not properly authenticated. On the contrary, O’Toole also sent Attorney
Cooley a letter stating that he would not cooperate with the defense, and at
the PCRA hearing, O’Toole’s court-appointed counsel confirmed that O’Toole
told counsel he will “in no way, shape or form … be cooperating or answering
any questions related to this case” if he is called to testify. N.T. PCRA Hearing,
2/14/18, at 5. Additionally, Zach Stern testified at the PCRA hearing that
O’Toole told him at the July 20, 2017 interview that he did “not want to testify
at the hearing.” Id. at 25. Accordingly, nothing in the record suggests that
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O’Toole will cooperate and testify on Burton’s behalf, were we to order a new
hearing on this claim.
Further, we discern no meaningful way that the PCRA court could compel
O’Toole to testify. As Judge McDaniel noted, O’Toole is serving a sentence of
life incarceration and, therefore, the threat of holding him in contempt of court
and additional jail time would not likely induce his cooperation. See id. at 5.
The Commonwealth also noted that O’Toole would “theoretically have a Fifth
Amendment right not to testify … because [the Commonwealth] could charge
him with perjury, because he is changing his testimony.” Id. at 6. Burton
offers no response to this argument.
Based on this record, it is reasonable to presume that O’Toole would not
testify at a new evidentiary hearing. Thus, Burton would only be able to offer
the very same evidence introduced when O’Toole was not present at the
hearing on February 14, 2018 – namely, the testimony of Zach Stern. Again,
Stern was permitted to testify about the content of O’Toole’s interview on July
20, 2017. See id. at 21-23. Thus, Judge McDaniel considered the substance
of O’Toole’s recantation and concluded that it did not warrant a new trial.
Curiously, Burton does not present any meaningful argument that Judge
McDaniel erred in this regard because O’Toole’s statements from the interview
are sufficient to warrant a new trial. Instead, he focuses solely on Judge
McDaniel’s decision to cancel O’Toole’s transportation order, contending that
he is entitled to a new evidentiary hearing. However, for the reasons stated
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supra, Burton has failed to establish that the outcome of that proceeding
would be different. Accordingly, he is not entitled to relief.
Goodwine Claim
Next, we address Burton’s argument that Judge McDaniel erred by
denying him a new trial based on the newly-discovered evidence of
Goodwine’s confession in his expungement motion. Before delving into the
specifics of Burton’s argument, we initially observe that:
The four-prong test for awarding a new trial because of after-
discovered evidence is well settled. The evidence: (1) could not
have been obtained prior to trial by exercising reasonable
diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness’s credibility; and (4)
would likely result in a different verdict. See Commonwealth v.
Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008) (citations omitted).
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). Pertinent to
our present discussion, this Court has stated that in determining “whether the
alleged after-discovered evidence is of such nature and character that it would
likely compel a different verdict if a new trial is granted[,] … a court should
consider the integrity of the alleged after-discovered evidence, the motive of
those offering the evidence, and the overall strength of the evidence
supporting the conviction.” Commonwealth v. Padillas, 997 A.2d 356, 365
(Pa. Super. 2010) (cleaned up). Finally, “the proposed new evidence must be
producible and admissible.” Castro, 93 A.3d at 825 (cleaned up).
In this case, Judge McDaniel concluded that Burton exercised due
diligence in discovering Goodwine’s expungement motion. See PCO at 4. She
made no express ruling on the second and third prongs of the above-stated
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test. Instead, she proceeded directly to the fourth prong, rejecting Burton’s
after-discovered evidence claim because she found Goodwine’s confession
wholly incredible.
Burton challenges that decision, contending that Judge McDaniel’s
credibility determination regarding Goodwine was premised on factors not
supported by the record. Judge McDaniel expressed four reasons for finding
Goodwine’s confession incredible: (1) she had found Goodwine’s testimony
incredible at a “prior hearing,” see N.T. PCRA Hearing, 10/5/17, at 48; PCO
at 7-8; (2) Goodwine “refused to testify” at the PCRA hearing, N.T. PCRA
Hearing, 10/5/17, at 49; PCO at 7-8 ; (3) Goodwine “was protected by the
prohibition against double jeopardy” and, thus, he “likely felt he had nothing
to lose by adding a confession to his expungement petition,” PCO at 8; and
(4) the “inescapable conclusion … was that [Goodwine’s confession] was a
concocted scheme” between Burton and Goodwine, id. We will address each
of these factors in turn.
First, Burton stresses that Judge McDaniel could not recall the date of
the ‘prior hearing’ at which she found Goodwine incredible, and she did not
offer any details regarding the context or content of Goodwine’s alleged
testimony at that unspecified proceeding. Burton claims that he
has searched in vain for any record of this prior hearing where
Goodwine testified but has found no documentation ordering a
hearing or when the hearing occurred. Indeed, Goodwine’s
Common Pleas Court docket sheet and case file does not list a
hearing in connection with his expungement motion, nor does the
docket sheet list an entry of a transportation order requiring
Goodwine’s attendance at [any] hearing.
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Burton’s Brief at 52. In any event, even if such a record exists, Burton
stresses that Judge McDaniel did not incorporate it into the record of this case
and, therefore, it was impermissible for her to rely on it in making her
credibility determination.
We agree. As Burton observes, this Court cannot review, let alone
accept, a credibility determination premised on a record that is not before us.
Because Judge McDaniel did not incorporate Goodwine’s alleged testimony at
the unidentified ‘prior hearing’ at which she deemed him incredible into the
record of the present case, it is obvious that it cannot support her decision
that Goodwine’s confession in the expungement motion was not believable.
Next, Judge McDaniel offers no explanation for why, in her view,
Goodwine’s invocation of his Fifth Amendment right not to incriminate himself
- which Judge McDaniel accepted as valid - casts doubt on the credibility of
his confession.7 Additionally, we agree with Burton that the record lacks
support for Judge McDaniel’s conclusion that Goodwine “likely felt he had
nothing to lose by adding a confession to his expungement petition….” PCO
at 8. As Burton avers, “Judge McDaniel’s decision at the … hearing to
____________________________________________
7We point out that neither party challenges Judge McDaniel’s acceptance of
Goodwine’s invocation.
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recognize the legitimacy of Goodwine’s right to remain silent destroys this
finding.” Burton’s Brief at 48. We agree.8
Finally, Burton argues that there is no support for Judge McDaniel’s
finding that Goodwine and Burton concocted a plan for Goodwine to confess
in the expungement motion. Again, we agree. Not only was there no evidence
____________________________________________
8 Although Judge McDaniel did not premise her credibility determination on a
conclusion that Goodwine’s confession was fabricated solely to obtain parole,
the Commonwealth presents this argument on appeal. In particular, the
Commonwealth maintains that, because Goodwine stated in his motion to
expunge that he was required to take “full responsibility” for his crime to be
paroled, it is apparent that Goodwine confessed “to curry favor with the parole
board by making a claim that he thought would most likely result in being
paroled….” Commonwealth’s Brief at 32, 33. However, Burton responds:
[I]f Goodwine falsely accepted sole responsibility for Seth
Floyd’s murder simply to obtain parole, why would he give an
account of Floyd’s murder that differed so dramatically from the
narrative at trial that supported his conspiracy conviction? His
conspiracy conviction, for instance, requires the existence of at
least two people “conspiring” with one another to murder Floyd.
The Commonwealth’s narrative at trial was that Goodwine and []
Burton had murdered Floyd.
If Goodwine wanted to impress upon the parole board that
he was truly “remorseful” for what he had done and was taking
“full responsibility” for his part in Floyd’s murder, why didn’t he
simply explain how he had “conspired” with [] Burton to “murder”
Seth Floyd? In other words, it would have been far easier to
obtain parole had Goodwine simply confessed to the narrative
presented at trial, i.e., he and [] Burton conspired to murder Floyd
and that they both had participated in the murder. By removing
[] Burton entirely from the narrative, Goodwine ran the risk of
having the parole board not believe his account, which in turn
decreased the likelihood of being paroled in the first place.
Burton’s Brief at 49 (emphasis in original). Burton’s argument is a convincing
counter to the Commonwealth’s position.
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presented to back this theory but, as the Commonwealth even concedes, it is
wholly illogical to conclude that the two men planned Goodwine’s 2009
confession, but Burton then waited until 2013 to raise it in his PCRA petition.
See Commonwealth’s Brief at 33 n.18. Moreover, Judge McDaniel found
credible evidence that Burton first discovered Goodwine’s expungement
motion when the Pennsylvania Innocence Project mailed him a copy of it. See
N.T. PCRA Hearing, 10/5/17, at 47. Had he and Goodwine concocted the plan
for Goodwine to confess in 2009, Burton insists he “would not have waited
around hoping someone would send him the expungement motion.” Burton’s
Brief at 47. Additionally, if Goodwine confessed solely to help Burton, why
would he not have sent that confession to Burton (or at least notified him of
its existence)? In light of this record, we agree with Burton, and the
Commonwealth, that Judge McDaniel’s conclusion that Goodwine and Burton
‘concocted’ Goodwine’s confession is not supported by the record, nor by logic.
In sum, there was no evidence presented at the PCRA hearing on
October 5, 2017, to support Judge McDaniel’s reasons for finding Goodwine’s
confession incredible. As her decision to deny his petition was premised on
this credibility determination, we must vacate Judge McDaniel’s order denying
Burton’s petition and remand for further proceedings.9
____________________________________________
9As Burton observes, on remand, his “case will be assigned to a new judge
because Judge McDaniel resigned on December 12, 2018….” Burton’s Brief at
32 (citation omitted).
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Before concluding, we recognize that remanding would be unnecessary
if we accepted either of the Commonwealth’s arguments that Goodwine’s
confession in the expungement motion is hearsay that would not be admissible
as substantive evidence at a new trial, or that the confession would not likely
result in a new verdict, even if admitted. See Commonwealth’s Brief at 27-
38. Burton offers strong counter-arguments to both of the Commonwealth’s
claims. See Burton’s Brief at 42-44; 50-65. Notably, neither of these issues
were addressed by Judge McDaniel below, and each potentially involves
factual findings and/or credibility determinations that must be made by the
PCRA court in the first instance. See Pa.R.E. 804(b)(3)(B) (requiring that, to
be admissible under this exception, the hearsay statement “is supported by
corroborating circumstances that clearly indicate its trustworthiness, if it is
offered in a criminal case as one that tends to expose the declarant to criminal
liability”); see Padillas, 997 A.2d at 365 (discussing the factual
considerations a trial court should assess in determining if the new evidence
would likely compel a different verdict).
Therefore, we vacate the PCRA court’s order to the extent it denied
Burton’s after-discovered evidence claim premised on Goodwine’s confession
in his motion to expunge, and we remand for further proceedings regarding
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that claim.10 On remand, the PCRA court must make credibility determinations
regarding Goodwine’s confession that are supported by the record before it.
If the court finds Goodwine’s confession credible, it must then assess whether
his statements in the motion to expunge would be admissible as substantive
evidence, and whether that evidence would likely result in a different verdict
if a new trial were granted. To the extent Judge McDaniel denied Burton’s
O’Toole claim, we affirm.
Order affirmed in part, vacated in part. Case remanded for further
proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2019
____________________________________________
10 We note that Burton claims, for the first time on appeal, that on October
19, 2017 (after Judge McDaniel denied his Goodwine-related claim), he
received from the Pennsylvania Board of Probation and Parole documents from
Goodwine’s parole file, which included a second, hand-written confession to
the murder by Goodwine. See Burton’s Brief at 19. Specifically, Goodwine
allegedly stated, in pertinent part: “I went to Mr. Floyd’s cell to fight[.] The
fight was getting out of control. And in the middle of our struggle I strangled
Mr. Floyds [sic] to death with a shoestring I had wrapped around my hand
during the fight.” Id. at 20. Goodwine does not mention Burton anywhere in
that confession. Again, Judge McDaniel was not presented with this evidence
in ruling on Burton’s petition below. We leave it to the discretion of the PCRA
court whether it will permit Burton to present this evidence to supplement his
Goodwine claim on remand.
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Com. v. Burton, S.
Combined Opinion