[J-87-2022] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 796 CAP
:
Appellee : Appeal from the Order entered on
: May 5, 2022 in the Court of
: Common Pleas, Lancaster County,
v. : Criminal Division at No. CP-36-CR-
: 0002879-2010.
:
JAKEEM LYDELL TOWLES, : SUBMITTED: December 2, 2022
:
Appellant :
CONCURRING OPINION
JUSTICE WECHT DECIDED: August 22, 2023
Nearly ten years after his first-degree murder conviction became final under the
Post Conviction Relief Act, 1 Jakeem Towles obtained an affidavit from Antwain Robinson.
Robinson had testified against Towles at trial. Robinson testified that he was with Towles
before, during, and after the May 7, 2010 murder of Cornell Anton Stewart, Jr., and the
attempted murder of John Wright. In his March 5, 2020 affidavit, Robinson stated that he
testified for the Commonwealth because “investigators threatened me that if I did not
cooperate with them and testify at Jakeem Towles’ [ ] trial, I could be charged with crimes
related to the incident and I could go to jail.”2 Robinson stated that he “believed them and
1 42 Pa.C.S. §§ 9541-9546 (“PCRA”). Pursuant to the PCRA, a “judgment becomes
final at the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the expiration
of time for seeking the review.” Id. at § 9545(b)(3).
2 See Maj. Op. at 5 (citing Second PCRA Petition, Appendix).
. . . was scared.” 3 Armed with this affidavit, on May 4, 2020, Towles filed a facially
untimely second PCRA petition. Towles claimed that the Commonwealth induced false
testimony from Robinson and withheld this information in violation of Brady v. Maryland. 4
Towles argued that his second PCRA petition was timely because it fell within the
PCRA’s timeliness exceptions for governmental interference and newly discovered facts.5
Towles claimed that he acted with due diligence in asserting his claim within the one year
time requirement of Section 9545(b)(2). 6 To establish due diligence, our case law
requires a petitioner to plead and prove that the information upon which the claim is
3 Id. The PCRA court referred to Robinson’s “alleged signature” on the affidavit and
speculated that counsel may have drafted the affidavit. PCRA Ct. Op. at 16, n.10. From
this, the Majority states that the PCRA court “did not look favorably upon Robinson’s
affidavit,” Maj. Op. at 24, and characterizes the affidavit as “discredited.” Id. at 26, n.18.
While the PCRA court may have questioned whether Robinson signed the affidavit, it
made no finding that that Robinson did not do so.
4 373 U.S. 83 (1963) (requiring the government to disclose all favorable evidence
that is material to guilt or punishment).
5 Section 9545(b)(1)(i)-(ii) provides:
(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; [or]
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(ii).
6 “Any petition invoking an exception provided in paragraph (1) shall be filed within
one year of the date the claim could have been presented.” Id. § 9545(b)(2).
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predicated could not have been obtained earlier with the exercise of due diligence. 7 As
we have explained,
Due diligence is a fact-specific concept that must be determined on a case-
by-case basis. Due diligence does not require perfect vigilance and
punctilious care, but rather a showing by the [party] that a reasonable effort
has been put forth. 8
By its express terms, the PCRA requires a petitioner to establish due diligence only
with respect to the exception for newly discovered facts. The PCRA imposes no such
requirement for the exception premised upon governmental interference. In light of the
inescapable and clear statutory language, I agree with Justice Donohue that our
precedent grafting a due diligence requirement onto the governmental interference
exception is misguided, and should be revisited. 9
Nonetheless, I join the Majority in its assessment of Towles’ failure to demonstrate
what the plain language of the governmental interference exception does require: that
Towles prove that the government unlawfully interfered with his ability to present his
claim. Robinson did not testify at the PCRA hearing. District Attorney Larson and
Detective Arnold credibly testified that no one threatened or manipulated Robinson into
cooperating against Towles. Without any evidence of governmental interference, Towles
failed to establish the requirements of this timeliness exception.
7 Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
8 Commonwealth v. Hill, 736 A.2d 578, 588 (Pa. 1999) (cleaned up); see also Maj.
Op. at 22.
9 See Conc. Op. at 2.
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I cannot join the Majority’s rejection of the applicability of the newly discovered
facts exception. The Majority treats both timeliness exceptions as if they are one and the
same and as if they share the same statutory prerequisites. They are not and they do
not. The Majority analyzes the newly discovered facts exception using the same
reasoning that it uses to reject the applicability of the governmental interference
exception. According to the Majority, because Towles did not establish that the
Commonwealth induced Robinson’s testimony, Towles “failed to establish the operative
newly discovered factual predicate upon which his claim is premised” 10
This one-size-fits-all analysis ignores the plain language of the exceptions and
conflates the merits of Towles’ Brady claim with Towles’ obligation to plead and prove
that the “fact” upon which the Brady claim was predicated had been unknown to him. This
“fact” is the allegation that the Commonwealth induced Robinson’s testimony. 11 Towles
learned of this “fact” upon receiving Robinson’s affidavit. Relying upon that affidavit,
Towles pleaded and proved that the fact of an alleged inducement was not known to him
until March 5, 2020. This is all that the first part of Section 9545(b)(1)(ii) requires. 12
Prior to Commonwealth v. Bennett, 13 confusion reigned regarding what Section
9545(b)(1)(ii) required of a petitioner in order to establish jurisdiction in the PCRA court.
This Court previously had referred to this subsection incorrectly as the “after-discovered
10 Maj. Op. at 26.
11 Or, as the PCRA court considered it, “the fact that Mr. Robinson may have been
testifying for the Commonwealth against his good friend because of threats or promises
or deals. . . .” PCRA Ct. Op. at 17.
12 42 Pa.C.S. § 9545(b)(1)(ii) (“the facts upon which the claim is predicated were
unknown to the petitioner . . . .”).
13 930 A.2d 1264 (Pa. 2007).
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evidence” exception, 14 conflating the jurisdictional requirements of Section 9545(b)(1)(ii)
with the merits required to support a claim for relief under Section 9543(a)(2)(vi). 15 In
Bennett, we recognized that this “shorthand 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.’” 16 Applying the Statutory Construction Act to the plain
terms of Section 9545(b)(1)(ii), this Court held that “it simply requires petitioner to allege
and prove that there were ‘facts’ that were ‘unknown’ to him and that he exercised ‘due
diligence.’”17 The Bennett Court recognized that, “[b]y imprecisely referring to this
subsection as the ‘after-discovered evidence’ exception, we have ignored its plain
language. Indeed, by employing the misnomer, we have erroneously engrafted Brady-
like considerations into our analysis of subsection (b)(1)(ii).” 18
Bennett unequivocally held that the PCRA creates a statutory separation of the
jurisdictional requirements of Section 9545(b)(1)(ii) from the merits requirements of
§ 9543(a)(2). All that Section 9545(b)(1)(ii) requires in order to establish jurisdiction is,
14 See, e.g., Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa. 1999) (referring
incorrectly to the “newly discovered facts” timeliness exception as the “after discovered
evidence” exception).
15 To be eligible for relief, this provision requires a petitioner to plead and prove that
the conviction or sentence resulted from “[t]he unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would have changed
the outcome of the trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).
16 Bennett, 930 A.2d at 1270.
17 Id. at 1270.
18 Id.
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(1) that the facts upon which the claim is predicated were not known to the petitioner, and
(2) that the facts could not have been ascertained with the exercise of due diligence. 19
In Bennett, we cautioned against conflating the timeliness and merits. 20 Today,
the Majority recreates the error that Bennett corrected, holding that the timeliness
exception of Section 9545(b)(1)(ii) requires a petitioner to plead and prove the merits of
the underlying claim. Proving the existence of the fact upon which a claim is predicated
is distinct from establishing that the fact is true or that it warrants relief on the underlying
claim. Commonwealth v. Robinson is illustrative. 21 There, the Opinion in Support of
Reversal (“OISR”) explained that newspaper articles reporting problematic emails
involving a former Justice of this Court were the “facts” upon which a claim of judicial bias
was predicated, i.e., the fact “that [former Justice] Eakin sent and received offensive
emails” for purposes of Section 9545(b)(1)(ii). 22 Whether the newspaper articles upon
which Robinson’s claim was based were later proven to be untruthful or factually
inaccurate, or whether the emails were inadequate to establish actual bias by a sitting
jurist, were questions that concerned the merits, not jurisdiction. 23 The Robinson OISR
faithfully applied the two parts of Section 9545(b)(1)(ii) as separate statutory
requirements, in accordance with Bennett’s mandate. Whereas the Opinion in Support
19 Id. at 1271-72.
20 Id. at 1271.
21 204 A.3d 326 (Pa. 2018).
22 Id. at 341 (OISR).
23 Id. at 342-43 (OISR) (observing that the issue of whether there was a connection
between the emails and Robinson’s case was a question that went to the merits of the
underlying claim, not to the timeliness of the petition).
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of Affirmance (“OISA”) in Robinson attempted to conflate the PCRA’s distinct provisions
(akin to what today’s Majority does), asserting that “the mere existence [of the emails]
does not demonstrate the fact of bias,” the Robinson OISR correctly responded that the
“newly discovered ‘fact’ here is the email communications by Eakin, not the existence of
bias.” 24
Similarly, in Commonwealth v. Chmiel, 25 we held that a newspaper report about
an FBI press release regarding the unreliability of microscopic hair comparison analysis
contained two newly discovered facts for purposes of Section 9545(b)(1)(ii) that served
as predicates for the underlying claim that the petitioner’s sentence resulted from faulty
hair comparison analysis. 26 In finding the timeliness exception satisfied, we did not delve
24 Id. at 343 (OISR).
25 173 A.3d 617 (Pa. 2017).
26 As we explained:
There are two newly discovered facts upon which Chmiel’s underlying claim
is predicated, both of which were made public for the first time in the
Washington Post article and the FBI press release. First, the FBI publicly
admitted that the testimony and statements provided by its analysts about
microscopic hair comparison analysis were erroneous in the vast majority
of cases. The FBI’s revelation reverberated throughout the country, marking
a “watershed in one of the country’s largest forensic scandals,” see
Appendix B at 1, precisely because it constituted a public admission by the
government agency that had propounded the widespread use of such
scientifically flawed testimony. The revelation was the first time the FBI
acknowledged that its microscopic hair analysts committed widespread,
systemic error by grossly exaggerating the significance of their data in
criminal trials. The Washington Post article acknowledged the novelty of the
FBI’s disclosures: “While unnamed federal officials previously
acknowledged widespread problems, the FBI until now has withheld
comment because findings might not be representative.” See Appendix B
at 2. Second, the FBI press release included the revelation that the FBI had
trained many state and local analysts to provide the same scientifically
flawed opinions in state criminal trials.
(continued…)
[J-87-2022] [MO: Brobson, J.] - 7
into the merits of the underlying claim. We permitted the petitioner to file the petition.
Then, and only then, could the PCRA court consider the merits of the claim.
And in Commonwealth v. Blakeney, 27 where the petitioner raised a claim of judicial
bias, the fact upon which this claim was predicated was the group of emails involving
former Justice Eakin as reported in newspapers. 28 It was only upon the publication of
these newspaper reports that Blakeney learned that former Justice Eakin had exchanged
the offensive emails upon which Blakeney’s claim was based. 29 In reaching this
conclusion, the OISR confronted the PCRA court’s assertion that Blakeney’s
“submissions do not constitute fact, but rather a theory that the emails reflect a fact.”30
Chmiel, 173 A.3d at 625.
27 193 A.3d 350 (Pa. 2018).
28 Id. at 361 (OISR as to timeliness) (“The claim that Blakeney raised in the Petition
is one of judicial bias, premised upon the argument that Justice Eakin's participation in
Blakeney's direct appeal and PCRA appeal violated various constitutional guarantees.
The fact upon which the claim is predicated is the group of emails, and the bias of Justice
Eakin that they suggest.”).
29 As the OISR explained:
With the publication of the newspaper reports, Blakeney, an African-
American and a Muslim, learned that a member of this Court had
exchanged emails denigrating African-Americans and Muslims. Blakeney
also learned that Justice Eakin had exchanged many other offensive emails
with members of the prosecution, suggesting a relationship of sufficient
closeness that threatened Justice Eakin's objectivity. These newly
discovered facts revealed the potential for judicial bias that Blakeney
believes unconstitutionally infected his appeals before this Court. The claim
of judicial bias is predicated upon the existence and content of offensive
emails transmitted by a sitting member of the court of last resort empowered
to adjudicate Blakeney's two appeals (save for any resort to a federal
forum).
Blakeney, 193 A.3d at 361 (OISR).
30 Id. at 362 (OISR).
[J-87-2022] [MO: Brobson, J.] - 8
We found this assertion puzzling, explaining that the newspaper reports revealed the
content of the emails, and the emails revealed the predicate for the claim of judicial bias.31
The Blakeney OISR also criticized the OISA’s view that a petitioner is required to prove
the new fact upon which the claim is predicated. The Blakeney OISR explained that
“[s]ubstantiating the veracity of the fact upon which the claim is predicated is a question
for merits review of the claim.” 32
The analysis employed by this Court in Chmiel and by the OISRs in Blakeney and
Robinson is the same analysis that must be applied here. The newly discovered fact here
is Robinson’s inducement allegation (as contained in the March 2020 affidavit), just as
the newly discovered fact in Blakeney and Robinson was the circulation of inappropriate
emails (as reported by newspapers), and just as the newly discovered facts in Chmiel
were contained in an FBI press release (as reported by media outlets). Today’s Majority
would require Towles to demonstrate that the Commonwealth actually induced
Robinson’s testimony in order for Towles to overcome the timeliness hurdle, in the same
way that the OISA in Robinson would require the petitioner therein to establish timeliness
by demonstrating judicial bias.
The OISA in Robinson was wrong then, and the Majority is wrong now. “[T]he
[timeliness] 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
31 Id. (“There was nothing theoretical about the disparagement that the emails
revealed. Rather, the emails revealed facts about a High Court jurist who participated in
Blakeney's direct appeal and PCRA appeal, and those facts served as the predicate for
a claim of judicial bias.”).
32 Id. at 364 (OISR).
[J-87-2022] [MO: Brobson, J.] - 9
such a claim is predicated must not have been known to appellant, nor could they have
been ascertained by due diligence.’” 33 Using the correct legal framework, it is clear that
Towles established the first requirement of Section 9545(b)(1)(ii): that the fact upon which
his Brady claim was predicated was not known to him. 34
The second requirement of Section 9454(b)(1)(ii) requires Towles to establish that
the fact could not have been ascertained by the exercise of due diligence. The PCRA
33 Bennettt, 930 A.2d at 1271-72
34 To open the door to the PCRA courtroom, a petitioner is required to plead and
prove the existence of a previously unknown predicate fact. 42 Pa.C.S. § 9545(b)(1)(ii).
The predicate “fact” for purposes of the newly discovered facts exception is Robinson’s
allegation of the Commonwealth’s inducement. Towles is required to plead and prove
that the fact of Robinson’s allegation was unknown to him. Robinson’s affidavit is to
Towles’ claim what the emails were to Robinson’s claim. Maj. Op. at 26, n.17 (citing
Robinson, 204 A.3d at 330-31).
On the merits of the Brady claim, the PCRA court noted that Towles relied upon
Robinson’s affidavit, and found that Robinson’s failure to appear made it impossible to
“determine the affiant’s credibility.” PCRA Ct. Op. at 19. Combined with other credited
evidence, this defeated Towles’ underlying Brady claim. Id. The Majority relies upon this
merits-based holding to conclude that “no credible evidence of record establishes that
Robinson, in fact, claimed that the Commonwealth induced his testimony, let alone that
the inducement actually happened.” Maj. Op. at 25.
Once again, I disagree. There is a distinction between Towles being unable to
prove that the inducement happened and being unable to prove that Robinson, in fact,
alleged that the inducement happened. This is not an instance where a PCRA petitioner
submitted a falsified affidavit. Rather, Towles came to the PCRA court with an affidavit
in hand affirming that the Commonwealth induced testimony. The fact that the PCRA
court later found that it could not determine the affiant’s credibility for purposes of the
underlying Brady claim does not mean that the allegation never happened. The PCRA
court’s inability to assess Robinson’s credibility goes to the merits of the Brady claim, not
to whether Robinson made the allegation in the first place.
The Majority’s overly narrow interpretation of Section 9545(b)(2)(ii) will prematurely
close the door to petitioners seeking to establish their eligibility for post-conviction relief.
To illustrate my concern, imagine a petitioner who obtains new exculpatory evidence.
The Majority would require the petitioner to establish the credibility or validity of this
evidence as part of establishing the timeliness of the PCRA petition. In my view, these
requirements go to the merits of the underlying claim, not to the timeliness exception.
[J-87-2022] [MO: Brobson, J.] - 10
court focused upon three junctures at which it believed that Towles failed to exercise due
diligence in locating Robinson and in obtaining his statement before March 5, 2020:
during cross-examination at trial; at the filing of Towles’ first PCRA petition; and during
investigations by current counsel, the Federal Community Defender Office (“FCDO”),
after 2015.
According to the PCRA court, Towles first displayed a lack of due diligence at trial.
The PCRA court noted that Towles’ trial counsel was aware that Robinson was
cooperating with the Commonwealth, feared prosecution, and had been directed not to
speak to Towles’ defense team. Yet trial counsel did not cross-examine Robinson to
probe the possibility that he was testifying under threats or promises by the
Commonwealth. The PCRA court believed that it would have been reasonable for trial
counsel to probe Robinson’s motives for testifying at trial, and that declining to cross-
examine Robinson about his motives was unreasonable, thereby demonstrating a lack of
due diligence.
I disagree with the PCRA court’s evaluation of trial counsel’s performance, as the
court employed a flawed lens. Instead of asking whether the unique factual
circumstances demonstrate that Towles put forth a reasonable effort, as due diligence
demands, the PCRA court examined Towles’ efforts with the clarity of hindsight. This
clarity was not available to Towles or to counsel until many years later.
This sort of assessment transgresses the prohibition against hindsight evaluations
in weighing claims of trial counsel ineffectiveness. One of the prongs of a claim of counsel
ineffectiveness requires the petitioner to prove that counsel’s course of conduct lacked a
[J-87-2022] [MO: Brobson, J.] - 11
reasonable basis designed to effectuate the client’s interests. 35 In assessing the
reasonableness of an attorney’s performance under a claim of ineffective assistance of
counsel, we view counsel’s performance “not in hindsight, but from counsel’s perspective
at the time.”36 As we have explained,
[a] fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. This is so because it is all
too tempting for a defendant to second-guess counsel, and all too easy for
a court to deem a particular act or omission unreasonable merely because
counsel's overall strategy did not achieve the result his client desired. 37
Our retrospective view of counsel’s efforts for purposes of one aspect of the PCRA
(due diligence for a timeliness exception) is problematic in light of our condemnation of
the same for purposes of another aspect of the same statute (claims of counsel
ineffectiveness). The PCRA court’s assessment of due diligence relied exclusively upon
the distorting effects of hindsight, reconstructed the circumstances of counsel’s conduct,
and evaluated the attorney’s efforts not from the attorney’s perspective at the time but
35 Commonwealth v. Spotz, 870 A.2d 822, 830 (Pa. 2005) (“Thus, the constitutional
ineffectiveness standard requires the defendant to rebut the presumption of professional
competence by demonstrating that: (1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the proceedings would have been different.”).
36 Commonwealth v. Jones, 815 A.2d 598, 615 (Pa. 2002) (Opinion Announcing the
Judgment of the Court).
37 Id. at 615–16 (cleaned up); see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)
(observing that the requirement of “contemporary assessment” recognizes that “from the
perspective of hindsight there is a natural tendency to speculate as to whether a different
trial strategy might have been more successful”); Commonwealth v. Sneed, 45 A.3d 1096,
1108 (Pa. 2012) (“A claim of ineffectiveness generally cannot succeed through
comparing, in hindsight, the trial strategy employed with alternatives not pursued.”) (citing
Commonwealth v. Miller, 819 A.2d 504, 517 (Pa. 2002)).
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from the court’s perspective many years later. While, from our appellate perch, we refuse
to second-guess counsel’s conduct in the face of allegations of ineffectiveness, we
simultaneously do exactly that in our due diligence analysis. Although an ineffectiveness
inquiry would not deem an act or omission unreasonable merely because it was
unsuccessful, the due diligence inquiry requires the petitioner to have pursued every
alternative, regardless of whether any would have been successful. In both cases, it is
the Commonwealth that benefits and the PCRA petitioner who shoulders the nearly
insurmountable burden.
In addition to relying upon the Commonwealth’s disclosure obligations for
information that might be useful for cross examination, 38 trial counsel conducted his own
pre-trial investigation of Robinson. Trial counsel repeatedly attempted to interview
Robinson, including at the county jail where Robinson was incarcerated. Each time,
Robinson refused to cooperate. In April 2011, Robinson indicated that he had been told
by someone not to talk to the defense team.
The PCRA court cast aside counsel’s multiple attempts to interview Robinson,
characterizing these efforts as unreasonable. According to the PCRA court, there was
only one reasonable course of conduct: to cross examine Robinson at trial. Because it
would have been reasonable to cross-examine Robinson, the PCRA court believed that
anything else was unreasonable. 39 This is a non-sequitur. The reasonableness of one
approach does not render all alternative approaches unreasonable. For example,
imagine that counsel had cross-examined Robinson in order to discover Robinson’s
38 See United States v. Bagley, 473 U.S. 667, 678 (1985).
39 See Maj. Op. at 24.
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motive for testifying. Imagine further that counsel had done so instead of attempting to
interview Robinson before trial. Would trial counsel’s failure to attempt to interview
Robinson before trial render counsel’s cross-examination unreasonable? This illustrates
the deficiency in using hindsight as a barometer for due diligence. There is always
something else that could have been done, something that a court can latch onto as a
more reasonable tactic, or something that simply makes more sense when we look back
years later. That a court may find a better choice does not, ipso facto, render all of
counsel’s actions unreasonable. We must consider the action from counsel’s perspective
at the time.
If we were examining counsel’s trial strategy within a claim of counsel
ineffectiveness, we would ask whether counsel, upon cross-examination, had any
reasonable basis not to probe the possibility of a deal with the Commonwealth. We would
answer this question without resorting to the crutch of hindsight, and without comparing
the course of conduct chosen to the universe of possible alternatives.
Evaluating counsel’s conduct under a claim of ineffectiveness, I have no doubt that
we would find that, given counsel’s lack of success in interviewing Robinson before trial,
counsel would have acted reasonably in declining to explore Robinson’s motivation for
testifying for the first time at trial. At the time of trial, counsel is operating in the service
of one objective: an acquittal. Defense counsel is not seeking to lay the groundwork for
due diligence just in case it turns out that the Commonwealth was violating its disclosure
obligations under Brady by withholding favorable evidence and just in case the client may
later have to establish a timeliness exception for a facially untimely PCRA petition.
Counsel had no idea what Robinson would say if asked, because, despite counsel’s
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extensive efforts, Robinson had deliberately avoided speaking with counsel before trial.
In front of the jury, it is not unreasonable for counsel to elect to avoid the risk of asking a
question to which counsel does not know the answer. 40 Without any indication that there
were improper motives being supplied by the Commonwealth, and without any
information from Robinson directly, it would have been irresponsible for counsel to
explore Robinson’s motivations in front of a jury. Pursuing a line of questioning without a
predicate factual basis, and without knowing the witness’s likely answers, could cause
counsel to appear dishonest, amateurish, or both. It could diminish counsel’s credibility
with the jury and seriously handicap counsel’s ability to advocate for the client. It could
produce testimony that hurts the client’s case. Reasonable counsel would safeguard the
client’s interests and counsel’s own credibility with the jury. Reasonable counsel does
not squander jurors’ goodwill by pursuing a line of questioning to which counsel does not
know the likely answer.
The PCRA court also discerned a lack of due diligence in the efforts that Towles’
attorneys made to locate and interview Robinson following Towles’ first PCRA petition.
Lawyers and investigators from the FCDO made multiple visits to Robinson’s address
and his parents’ address. Ultimately, in March 2020, they succeeded in obtaining
Robinson’s affidavit. The PCRA court determined that the FCDO’s ultimate success in
locating and speaking with Robinson in 2020 at Robinson’s address indicated that
counsel’s prior unsuccessful efforts lacked due diligence. 41 The PCRA court held that,
40 See, e.g., Tom Branigan, Cross-Examination of Technical Experts, 94 MICH. B.J.
58, 60 (2015) (referencing the adage to “[n]ever ask a question on cross to which you do
not know the answer”).
41 PCRA Ct. Op. 5/5/2022 at 16.
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instead of continuing to seek Robinson at his and his parents’ home addresses,
reasonable counsel should have pursued other methods of locating him, such as
contacting Robinson’s prior counsel of record or his probation officer. Because there
were reasonable alternatives, the PCRA court concluded that Towles’ (ultimately
successful) efforts were unreasonable, demonstrating a lack of due diligence.
The PCRA court transformed due diligence into a moving target, retrospectively
evaluating the reasonableness of counsel’s ultimately successful efforts by measuring
them now against speculative alternatives that counsel could have pursued then. With
the benefit of hindsight, and with the liberty to move the goal posts, it is easy to look back
now at what was done then and contrast it with what else could have been done. But the
question is not whether a petitioner could have done more, for the answer to that will
always be “yes.” The question is whether the petitioner or petitioner’s counsel “put forth
a reasonable effort to obtain the information upon which a claim is based.” 42
Imagine that, instead of trying to find Robinson at his address, counsel
unsuccessfully had tried to arrange a meeting through Robinson’s attorney or probation
officer. Would the PCRA court hold that those unsuccessful efforts were unreasonable
because Robinson was available at his own residence? I fear that it would. What if
counsel had attempted to contact Robinson’s attorney, but not his probation officer?
Would that be unreasonable? It is one thing to scour the universe of potential alternatives
that were not pursued; it is quite another to ask whether the path chosen, a path that
ultimately was successful in obtaining Robinson’s affidavit, was reasonable.
42 Commonwealth v. Bagnall, 235 A.3d 1075, 1091 (Pa. 2020) (citation omitted).
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Instead of focusing upon additional or alternative steps that counsel could have
taken, I would confine the due diligence analysis to the reasonableness of the steps that
counsel did take. It was reasonable for counsel to attempt to locate Robinson repeatedly
at his and his parents’ last known addresses. The reasonableness of these efforts is
demonstrated by their ultimate success.
Although I cannot agree with the PCRA court’s analysis of due diligence at trial or
after the first PCRA petition with respect to the newly discovered facts timeliness
exception, the record supports the PCRA court’s holding that Towles failed to establish
the due diligence necessary to demonstrate that his second PCRA petition was timely
filed. As the PCRA court found, Towles has made no attempt to establish what efforts he
undertook to locate Robinson to obtain a statement in connection with his first PCRA
petition.
Thus, I join Sections I, II, and III of the Majority’s opinion. I concur only in the result
of Section IV, affirming the PCRA court’s dismissal of Towles’ second PCRA petition as
untimely. I agree with the Majority that Towles failed to establish the governmental
interference exception. I disagree with the Majority’s treatment of the newly discovered
facts exception. Rather than holding that Towles failed to establish the fact upon which
his underlying claim was predicated, I would hold that Towles failed to establish that he
acted with due diligence.
[J-87-2022] [MO: Brobson, J.] - 17