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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARK VINCENT,
Appellant No. 3496 EDA 2016
Appeal from the PCRA Order Entered October 27, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0710181-1995
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 25, 2017
Appellant, Mark Vincent, appeals pro se from the post-conviction
court’s October 27, 2016 order dismissing, as untimely, his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
For the reasons herein, we reverse and remand.
The PCRA court summarized the procedural history underlying this
appeal as follows:
[Appellant] was arrested and subsequently charged with
homicide and related offenses stemming from the killing of
James Moore on May 12, 1995[,] in the city of Philadelphia. On
October 16, 1996, following a jury trial presided over by the
Honorable James Lineberger, [Appellant] was convicted of first-
degree murder, robbery, and weapons offenses. On June 30,
1997, the trial court imposed a sentence of life imprisonment for
the murder conviction and a lesser consecutive term of
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* Former Justice specially assigned to the Superior Court.
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incarceration for the robbery conviction. Following a direct
appeal, [Appellant’s] judgment of sentence was affirmed by the
Superior Court on October 6, 1998, and the Pennsylvania
Supreme Court denied allocatur on October [7], 1999.2
2 Commonwealth v. Vincent, 731 A.2d 200 (Pa. Super.
1998) (unpublished memorandum), appeal denied, 745
A.2d 1222 (Pa. 1999).
On January 9, 2002, [Appellant] filed his first pro se PCRA
petition. Counsel was appointed and subsequently filed a
Turner/Finley no merit letter.3 The PCRA court denied the
petition on April 14, 2003. The Superior Court affirmed the
PCRA court’s order denying relief on September 3, 2004.4
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
4Commonwealth v. Vincent, 863 A.2d 1233 (Pa. Super.
2004) (unpublished memorandum).
On February 12, 2016, [Appellant] filed the instant pro se PCRA
petition, his second. Pursuant to Pennsylvania Rule of Criminal
Procedure 907, [Appellant] was served notice of the PCRA
court’s intention to dismiss his petition on July 19, 2016.
[Appellant] submitted a response to the Rule 907 notice on
August 9, 2016. On October 27, 2016, the PCRA court dismissed
his petition as untimely. On November 4, 2016, the instant
notice of appeal was timely filed to the Superior Court.
PCRA Court Opinion (PCO), 2/7/2017, at 1-2 (single footnote omitted).
On appeal, Appellant raises a single issue for our review:
Did the PCRA court err in dismissing the newly discovered
evidence based upon a purported lack of diligence?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Our standard of review regarding an order denying post-conviction
relief is whether the findings of the court are “supported by the record and
free of legal error.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093
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(Pa. 2010) (citations omitted). We begin by addressing the timeliness of
Appellant’s petition because “[t]he PCRA’s time restrictions are jurisdictional
in nature. … Without jurisdiction, we simply do not have the legal authority
to address the substantive claims.” Id. (citations omitted). With respect to
timeliness, the PCRA provides, in pertinent part, the following:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1)-(2).
Here, as mentioned by the PCRA court above, this Court affirmed
Appellant’s judgment of sentence on October 6, 1998, and the Pennsylvania
Supreme Court denied allocatur on October 7, 1999. Appellant did not file a
petition for a writ of certiorari with the United States Supreme Court. Thus,
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Appellant’s judgment of sentence became final on January 5, 2000, and he
had one year from that date to file a timely PCRA petition. See 42 Pa.C.S. §
9545(b)(3) (stating that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); U.S. Sup. Ct. R. 13(1) (stating that a petition for a writ of certiorari
is timely when it is filed within 90 days after entry of the judgment).
Therefore, his present petition, filed on February 12, 2016, is patently
untimely, and Appellant must satisfy one of the exceptions to the timeliness
requirement set forth in section 9545(b)(1)(i)-(iii), supra.
Appellant argues that he meets the exception for newly-discovered
facts under section 9545(b)(1)(ii). “When considering a claim seeking to
invoke section 9545(b)(1)(ii), the petitioner must establish only that (1) the
facts upon which the claim was predicated were unknown and (2) they could
not have been ascertained by the exercise of due diligence.”
Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016) (citation omitted).
Further, our Supreme Court has “unequivocally explained that the exception
set forth in subsection (b)(1)(ii) does not require any merits analysis of the
underlying claim. Rather, the exception only requires a petitioner to prove
that the facts were unknown to him and that he exercised due diligence in
discovering those facts.” Id. (citation and internal quotation marks
omitted). “Due diligence does not require perfect vigilance and punctilious
care, but merely a showing the party has put forth reasonable effort to
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obtain the information upon which a claim is based.” Id. at 230 (citation
and internal quotation marks omitted).
In his PCRA petition, Appellant claimed that he satisfied section
9545(b)(1)(ii), based on the affidavit of a previously unknown witness
named William Adams. See Appellant’s PCRA Petition (hereinafter Petition),
2/12/2016, at 2-3. Appellant summarized the content of Mr. Adams’s
affidavit as follows:
According to Mr. Adams, he was present when the events
leading to [Appellant’s] arrest occurred and witnessed an
individual named Kenneth Billie a.k.a. Kenneth Hall shoot the
victim. Mr. Adams state[s] that he was on his way home on the
night in question and noticed a crowd in the vicinity of south
60th Street. Mr. Adams reveals in his affidavit that he saw
[Appellant] arguing with the decedent who[] was a childhood
friend of Kenneth Billie. After witnessing [Appellant] slap the
victim, [M]r. Adams saw Kenneth Billie a.k.a. Kenneth Hall pull a
handgun from his jacket and shoot the victim, although he was
shooting at [Appellant].
Id.
The PCRA court subsequently dismissed Appellant’s petition,
determining that he did not fulfill the requirements of section 9545(b)(1)(ii).
Specifically, the PCRA court found that Appellant “failed … to demonstrate
that the ‘fact’ that someone else murdered the decedent could not, with the
exercise of due diligence, have been ascertained earlier.” PCO at 4. It
stated that “[a]t trial, the Commonwealth presented multiple
eye[]witnesses. Rather than detailing any efforts to contact them,
[Appellant] speculated that neither [of the eyewitnesses] would have been
amenable to cooperation, because they were ‘friends to the prosecution.’”
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Id. (citation omitted). The PCRA court also observed that “[i]n addition to
known witnesses, [Appellant] had reason to suspect the existence of other
potentially helpful witnesses. [Mr.] Adams expressed detailed knowledge of
the incident, articulating nicknames of, and relationships among, those
present” and “described the gathering of individuals as a crowd.” Id.
Nonetheless, it noted that Appellant “failed to articulate any efforts to locate
or identify additional witnesses, such as [Mr.] Adams.” Id. Although it
acknowledged that Appellant claimed he “was unable to conduct an
investigation because he was incarcerated[,]” it found his “explanation for
failing to act … insufficient absent a demonstration that his access to
communication channels was restricted while in custody.” Id. at 4-5.
Instantly, Appellant argues that the PCRA court improperly required
“maximum diligence” instead of “due diligence” in its application of section
9545(b)(1)(ii). See Appellant’s Brief at 10. He claims that he could not
identify additional witnesses because he “does not know any of those
individuals and knew nothing of them prior to receiving the affidavit.” Id.
Moreover, he asserts that it was unreasonable for the PCRA court to expect
him to contact the Commonwealth’s eyewitnesses because “attempting to
contact [them] could have exposed [Appellant] to criminal liability for
witness tampering.” Id. Finally, in response to the PCRA court’s evaluation
that he did not adequately demonstrate efforts to identify potential
witnesses while in prison, Appellant asserts that “nothing would have
revealed Mr. Adams except for Mr. Adams himself.” Id. at 11.
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After careful review, we believe that Appellant has satisfied section
9545(b)(1)(ii). First, Appellant has established that the facts upon which his
claim was predicated — Mr. Adams’s witnessing Mr. Billie shoot the decedent
— were unknown. See Cox, 146 A.3d at 227 (“When considering a claim
seeking to invoke section 9545(b)(1)(ii), the petitioner must establish only
that (1) the facts upon which the claim was predicated were unknown and
(2) they could not have been ascertained by the exercise of due diligence.”).
Appellant alleges that “[p]rior to, during or after trial, [he] had no
knowledge of Mr. [A]dams nor of the information he possessed. [T]here was
nothing presented during trial that would have remotely alerted the defense
to Mr. Adams or Kenneth Billie a.k.a. Kenneth Hall.” Petition at 3. Further,
the Commonwealth does not argue that Appellant had knowledge of any un-
named eyewitnesses at the scene of the shooting, let alone Mr. Adams
specifically, nor does our cursory review of the record indicate that Appellant
did.
Second, Appellant has shown that the information in Mr. Adams’s
affidavit could not have been ascertained by the exercise of due diligence.
See Cox, 146 A.3d at 227. As Appellant did not know that there were any
other eyewitnesses to the shooting, no reasonable effort would have led to
his obtaining the information set forth in Mr. Adams’s affidavit. See id. at
230. Accordingly, the PCRA court erred in determining that Appellant did
not meet section 9545(b)(1)(ii) and deeming his petition untimely on this
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basis.1 Therefore, a hearing is warranted on the merits of Appellant’s after-
discovered evidence claim.2
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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1 We further note that Appellant filed his petition within 60 days of the date
the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2) (“Any
petition invoking an exception … shall be filed within 60 days of the date the
claim could have been presented.”); Affidavit of William Adams, 2/3/2016,
at 2 (“On January 4, 2016, … I approached [Appellant] and relayed the
above information to him.”).
2 See Cox, 146 A.3d at 228 (explaining that to establish an after-discovered
evidence claim, “a petitioner must prove that (1) the evidence has been
discovered after trial and it could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not cumulative; (3) it is
not being used solely to impeach credibility; and (4) it would likely compel a
different verdict”) (citation omitted).
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