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2021 PA Super 12
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARYL WILLIAMS :
:
Appellant : No. 2081 EDA 2019
Appeal from the PCRA Order Entered June 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1221521-1987
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
OPINION BY LAZARUS, J.: FILED: JANUARY 25, 2021
Daryl Williams appeals from the order, entered in the Court of Common
Pleas of Philadelphia County, dismissing, as untimely, his fourth petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
After careful review, we vacate and remand for an evidentiary hearing.
In February 1989, a jury convicted Williams of first-degree murder1 and
possessing an instrument of crime (PIC).2 The trial court set forth the facts
underlying the case as follows:
On October 21, 1987, at about 7:00 p.m.[,] several young men
known as the “Gratz Street Boys” entered Trim’s Meat Market at
[18th] Street and Montgomery Avenue, threatened the employees,
pushed over a display case[,] and then ran outside. The
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a)(1).
2 18 Pa.C.S.A. § 907(a)(1).
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employees from the store pursued the “Gratz Street Boys” up and
down [18th] Street. The deceased[,] Derrick Whitmore, and his
friend, observing the fight from the deceased[’s] home at 1828 N.
[18th] Street, came to the corner of [18th] Street and Montgomery
Avenue to find out what was happening. They position[]ed
themselves on the southwest corner on the opposite side of the
street from Trim’s Meats.
In the meantime, a car with two or three men[,] including
[Williams,] . . . drove up to the front of Trim’s Meats[.] [The] men
went inside for a short time, came back outside[,] and were
getting into their car when someone from the crowd threw a bottle
at their car. When the bottle broke in the street near the car,
[Williams] pulled out a .45 caliber automatic weapon and fired [it]
into the crowd hitting[,] the deceased once in the back of the head
causing his death.
Trial Court Opinion, 7/7/89, at 1-2.
A jury trial was held from February 6-15, 1989; at trial, two of three3
eyewitnesses were either unable to or unwilling to positively identify Williams
as the shooter.4 The jury convicted Williams of the above-cited offenses. The
court sentenced him to life imprisonment without the possibility of parole for
murder, with a concurrent 2½-5 years’ imprisonment for PIC. Williams filed
a direct appeal from his judgment of sentence, challenging the weight of the
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3 Eyewitness Derrick Lamont Allen, positively identified Williams at trial as the
man who fired the fatal shot. N.T. Jury Trial, 2/8/89, at 364.
4 Eyewitness Ollie Minor testified that while he was present at the shooting,
he was unable to identify Williams as the shooter. N.T. Jury Trial, 2/8/89, at
253, 257, 263. The Commonwealth, via a detective, introduced Minor’s out-of-court statement identifying Williams as the shooter as substantive
evidence. Id. at 258; 261-62. Similarly, when eyewitness Dwayne Jeffrey
Murray did not positively identify Williams at trial, stating he “th[ought]”
Williams was the shooter, but did not get a good look at him the night of the
shooting, the Commonwealth introduced Murray’s prior statement identifying
Williams as the shooter as substantive evidence. Id. at 299-320.
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evidence and the introduction of testimony concerning Williams’ alleged drug
trafficking. Our Court affirmed his judgment of sentence. Commonwealth
v. Williams, 573 A.2d 1161 (Pa. Super. filed Feb. 20, 1990) (unpublished
memorandum decision). Williams did not file a petition for allowance of appeal
with the Pennsylvania Supreme Court.
Over the past thirty years, Williams has filed repeated collateral
challenges to his convictions.5 In his latest attempt, he seeks PCRA relief
based upon new evidence pertaining to a cooperating Commonwealth witness,
David Eisner. Eisner and Williams shared a jail cell for two weeks at the
Montgomery County Prison in July 1988. On the first day of Williams’ trial,
Eisner gave the police the following statement6 regarding the instant shooting:
[Williams] said that in the winter time of 1987 . . . he rolled
up to the corner [of 33rd and Dauphin Streets in North
Philadelphia where] there was a store . . . and he said I think
there was a fight going on. Williams said something about
2 parked cars and he got out of a brown AMC he was driving
and shot the mother[^]u[*]ker for trying to take over the
corner. Williams said he then swapped cars and got into a
Eldorado[;] I think was white. Williams once said there was
a girl and guy who were witnesses, but it was taken care of
and the[ir] testimony wouldn’t be any good. He also said
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5Williams filed PCRA petitions in June 1992 (pro se), April 2000, and June
2012 (pro se); all were denied.
6 Because the prosecutor did not learn about Eisner’s existence until February
6, 1989—the first day of trial— defense counsel was not made aware of the
Commonwealth’s intention to call Eisner as a witness until four days into trial,
on February 9, 1989. The delay in listing Eisner as a witness was a result of
the fact that he did not come forward with the statement about Williams’
involvement in the shooting until February 6th.
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he got rid of the gun, he didn’t say where or what caliber []
it was, but he did say it was a pistol. I think he shot the
guy once or twice. One time he mentioned he or his cousin
were from 21st & Lehigh. I know the shooting was in North
Philly and that the drug corner was 33rd and Dauphin, but I
am not sure exactly where the shooting took place. Williams
said he was gonna beat the case because [] the two
witnesses won’t give damaging testimony. He also said if
he needed any money to beat the case a guy named
Anthony, he called [“]Ant,[”] would give him whatever he
needed.
Investigation Interview Record, 2/6/89, at 1-2.7 Eisner’s statement was
admitted as an exhibit at trial.
At Williams’ trial, Eisner testified that Williams confessed to the instant
offenses. N.T. Jury Trial, 2/10/89, at 553 (“He told me that he was down for
a homicide . . . [s]temming from an incident that happened in North
Philadelphia in the winter of [’]87).”). Eisner also testified that he had been
convicted of burglary and retail theft in 1979, that he was currently serving
1½-5 years in prison for violating his probation by committing retail theft, and
that he was going to be serving a sentence for escape. Id. at 523-24, 551-
52, 63. The trial judge precluded Eisner from testifying regarding where he
was imprisoned or that he met Williams in Montgomery County Prison, id. at
540,8 but permitted counsel to question Eisner “about any deal . . . [or] any
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7 At Williams’ trial, Eisner testified he voluntarily gave the statement when
police questioned him on an unrelated automobile theft and escape. See N.T.
Jury Trial, 2/10/89, at 582-83.
8 See N.T. Jury Trial, 2/10/89, at 538 (trial judge stating, “I’m not going to
limit your cross[-]examination unless you ask him specifically where [he is]
being housed.”); id. at 537 (trial judge stating to counsel Eisner “cannot
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benefits on his time served in prison.” Id. at 537. See id. at 542-43 (“[Y]ou
could also question him as to whether or not he got any deal[.]”). None of
Eisner’s prior convictions, which included burglary, theft, receiving stolen
property, and conspiracy (all stemming from a 1975 arrest), disorderly
conduct (1976), theft by unlawful taking and simple assault (1979), simple
and aggravated assault (1979), theft and PIC (1981), burglary (1982), and
receiving stolen property (1988), was disclosed by the prosecution at or before
trial. On cross-examination, defense counsel did not explore Eisner’s full
criminal history or address any potential promise of favorable treatment in
exchange for Eisner’s cooperation in the case.9
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answer where he is serving the time or that he is serving in Montgomery
County. If he does, there will be a mistrial, that’s clear, and I’m going to tell
him that in advance[.]”).
9 In the middle of cross-examination, the trial judge clarified defense counsel’s
question regarding why Eisner decided to come forward, at such a late date,
with the evidence about Williams’ involvement in the shooting; Eisner replied
that he thought he would get a break on his current charges if he cooperated.
Id., at 562 (“I’m hoping that my [j]udge, the [j]udge that I have to go in front
of, would look favorably at the cooperation I give here); id. at 570-71 (“I feel
the [j]udge will know that I’ve been cooperative. That’s all.”). However,
Eisner acknowledged that no one had told him that he would get a break for
testifying against Williams and that no one had told him that they would tell
the judge in his case he had testified against Williams. Id. at 570.
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In his current untimely PCRA petition,10 filed on July 18, 2017,11 Williams
alleges for the first time facts regarding Eisner’s criminal history and
previously undisclosed pattern of cooperation with the prosecution in
exchange for favorable treatment in his own open criminal matters. Williams
also makes a related claim that the Commonwealth failed to disclose Eisner’s
complete criminal history and pattern of cooperation in violation of Brady v.
Maryland, 373 U.S 83 (1963).12 Williams alleges he first learned of these
facts on July 13, 2017, when a family friend mailed him court transcripts dated
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10 The parties do not dispute that Williams’ petition is untimely under the
PCRA. A PCRA petition, including a second or subsequent petition, must be
filed within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3). Here, Williams’
judgment of sentence became final on March 22, 1990, when the time expired
for him to file a petition for allowance of appeal with the Pennsylvania Supreme
Court. See Pa.R.A.P. 1113. Thus, he had until March 22, 1991, to file his
petition. Because Williams’ current petition was filed more than 26 years past
that date, it is patently untimely. Thus, he has plead two exceptions to the
timeliness requirement, see 42 Pa.C.S.A. §§ 9545(b)(1)(i) & (ii), in an
attempt to overcome this jurisdictional hurdle.
11 PCRA counsel filed amended and supplemental amended petitions raising
claims of newly-discovered facts about witness Eisner and governmental
interference.
12 In Brady, the United States Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
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May 21, 1982, and October 4, 1988.13 These transcripts—notes of testimony
from Eisner’s unrelated criminal matters—disclosed that Eisner was an
informant for the Philadelphia Police Department and also revealed the fact
that Eisner had prior crimen falsi convictions that had not been disclosed at
Williams’ trial.
In his PCRA petitions, Williams pled two exceptions to the PCRA’s time-
bar: the governmental interference exception14 and the newly-discovered
facts exception.15 On May 14, 2019, the court issued Williams Pa.R.Crim.P.
907 notice of its intent to dismiss his PCRA petition without a further
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13 Williams claims that on May 12, 2017, he asked his friend, Pamela Griffin,
to go to the Montgomery County Courthouse to obtain the notes of testimony
from two hearings related to Eisner’s 1982 criminal case. Those hearings, a
sentencing hearing and probation violation hearing, occurred before Williams’
trial, which began on February 6, 1989. At the sentencing hearing, a
prosecutor outlined Eisner’s history of cooperation, including working with the
members of the Major Crimes Unit in Philadelphia, and acknowledged that he
had received a favorable plea as a result. See Appellee’s Brief, at 9, citing
N.T. Eisner Sentencing Hearing, 5/21/82, at 3-4.
14 See 42 Pa.C.S.A. § 9545(b)(1)(i) (“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: [] 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[.]”).
15 See 42 Pa.C.S.A. § 9545(b)(1)(ii) (“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: [] 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[.]”).
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proceeding, finding that “[t]he issues raised in [Williams’] PCRA petition . . .
[were] without merit.” Pa.R.Crim.P. 907 Notice, 5/14/19, at 1. Williams did
not file a response. On June 18, 2019, the court dismissed Williams’ petition.
Williams filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. He presents the
following issues for our consideration:
(1) Was [Williams] entitled to a hearing on his claim that his
PCRA filing below, within sixty (60) days of his discovery of
evidence revealing [a] critical witness’s extensive history of
cooperation with law enforcement and crimen falsi
convictions, after the Commonwealth affirmatively
misrepresented that history, satisfied the jurisdictional
requirements of 42 Pa.C.S.[A.] §[§] 9545(b)(1)(i) & (ii)?
(2) Was [Williams] entitled to a hearing on his Brady claim
where, after a trial in which the only eyewitness to make an
in-court identification admitted to his criminal involvement
in the incident, [Williams] presented evidence suppressed
by the Commonwealth, revealing a jailhouse informant’s
history of informing for law enforcement and crimen falsi
convictions, after the Commonwealth at trial affirmatively
misrepresented that history, in a case where the informant
testified to [Williams’] confession to the offense?
(3) Was [Williams] entitled to a hearing on his [newly-discovered facts] claim where, after a trial in which the only
eyewitness to make an in-court identification admitted to
his criminal involvement in the incident, [Williams]
presented evidence—formerly suppressed by the
Commonwealth—after he diligently searched for such
evidence, revealing a jailhouse informant’s history of
cooperation with law enforcement and crimen falsi
convictions, after the Commonwealth at trial affirmatively
misrepresented that history, in a case where the informant
testified to [Williams’] confession to the offense?
Appellant’s Brief, at 5.
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The standard of review of an order dismissing a PCRA petition is whether
that determination is supported by the evidence of record and is free of legal
error. The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012). Moreover,
[A] PCRA petitioner is not automatically entitled to an evidentiary
hearing. We review the PCRA court’s decision dismissing a
petition without a hearing for an abuse of discretion.
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s
discretion to decline to hold a hearing if the petitioner’s
claim is patently frivolous and has no support either in the
record or other evidence. It is the responsibility of the
reviewing court on appeal to examine each issue raised in
the PCRA petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of material
fact in controversy and in denying relief without conducting
an evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
Instantly, the trial court concluded that Williams’ “PCRA petition is
untimely and [that] he has failed to demonstrate that any exception to the
time-bar is applicable.” Trial Court Opinion, 12/27/19, at 4. Specifically, the
court acknowledged that, while Williams pled the newly-discovered facts and
governmental interference exceptions to the PCRA’s time-bar in his petition,
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id. at 5, he “failed to file the instant petition within 60 days[16] of the date the
claims could have first been presented.” Id. Conversely, in its appellate brief,
the Commonwealth concedes that Williams is entitled to an evidentiary
hearing to “more fully explore the underlying material issues of fact as to the
extent of Eisner’s prior record and cooperation, the possession of which could
arguably be imputed to the Commonwealth.” Appellee’s Brief, at 32.
With regard to the 60-day time limit within which Williams was required
to present the claims regarding Eisner’s criminal record or informant status,
the PCRA court found that Williams was able to learn of these facts before July
13, 2017, where transcripts demonstrating these facts “[we]re of public
record.” Trial Court Opinion, 12/27/19, at 5. In coming to its decision, the
trial court relied on case law supporting the presumption that “publicly
available information cannot predicate a timeliness exception beyond the 60-
day grace period defined in [s]ection 9545(b)(2).” Id. See Commonwealth
v. Burton, 158 A.3d 618, 624-25 (Pa. 2017)17 (compiling cases applying
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16 “Any petition invoking an exception provided in [section 9545(b)](1) shall
be filed within one year of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2). Section 9545(b)(2) was amended on October 24,
2018, effective in 60 days (Dec. 24, 2018), extending the time for filing from
its original time limit of sixty days of the date the claim could have been
presented, to one year. The amendment applies to claims arising on
December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894, No. 146,
§ 3. Since the current claim arose prior to December 2017, the sixty-day time
limit in the prior version of section 9545(b)(2) applies herein.
17 Notably, Burton whittles away at the public record presumption, holding
that the presumption, for purposes of section 9545(b)(1)(ii), does not apply
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public record presumption to PCRA’s newly-discovered facts exception); see
also Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017)
(“Generally, Pennsylvania courts presume that information of public record is
not ‘unknown’ for purposes of the [s]ection 9545(b)(1)(ii) exception.”)
(citations omitted).
However, on October 1, 2020, nine months after the trial court filed its
Rule 1925(a) opinion and more than one year following the denial of Williams’
PCRA petition, our Supreme Court decided Commonwealth v. Small, 238
A.3d 1267 (Pa. 2020). In Small, the Supreme Court “disavow[ed] the public
record presumption [and overruled any] earlier decisions, including [its] own,
[that] relied upon and applied that presumption to reject a petitioner’s claim.”
Id. at 1286. The Small Court recognized that the public record presumption
“can lead to results in tension with the statutory language [of section
9545(b)(1)(ii) . . . where] a PCRA petition can establish the facial
requirements of the newly[-]discovered fact exception, but the court rejects
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to pro se petitioners who are incarcerated. Id. at 638. The Burton Court
logically reasoned that an unrepresented inmate has diminished access to
such public records. Id. However, even under Burton, a pro se incarcerated
petitioner is still required to plead and prove that the facts grounding his or
her claim were unknown to him or her, that he or she could not have
discovered those facts sooner with the exercise of due diligence, and his or
her reasonable access to the public records. Id.
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[a] claim merely due to the earlier public availability of the information[.]”
Id. at 1284.18
Here, it is undisputed that Eisner’s testimony was critical to the
Commonwealth’s case and provided a motive for the shooting that no other
witness had offered. Eisner’s credibility is especially relevant where two
Commonwealth eyewitnesses repudiated or substantially diluted their out-of-
court identifications at trial. Therefore, applying Small, we conclude that the
PCRA court erred in dismissing Williams’ petition without a hearing based on
the now-overruled public record presumption. Williams’ petition raises
material issues of fact and entitles him to an evidentiary hearing to determine
whether he qualifies for an exception to the PCRA’s time requirements
pursuant to subsections 9545(b)(1)(i) and (ii). Bennett, supra; Burton,
supra. See Pa.R.Crim.P. 908(A)(2) (PCRA judge “shall order a hearing . . .
when the petition for post-conviction relief . . . raises material issues of fact.”).
At the hearing, the court shall first determine whether the facts about
Eisner’s criminal history and pattern of involvement in Commonwealth
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18 Small discussed Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007),
wherein the Supreme Court clarified that the newly-discovered facts exception
“does not require the petitioner to allege and prove a claim of ‘after-discovered
evidence.’ Rather, it simply requires [a] petitioner to allege and prove that
there were ‘facts’ that were ‘unknown’ to him and that he exercised ‘due
diligence’” in uncovering those facts.
Id. at 1270 (emphasis added). The
Bennett Court reiterated that the plain language of section 9545(b)(1)(ii) “is
not so narrow as to limit itself to only claims involving ‘after-discovered
evidence.’”
930 A.2d at 1272.
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prosecutions were “unknown” to Williams.19 Small, 238 A.3d at 1267. If the
court concludes that the facts were unknown, then the court must examine
the extent to which Williams exercised due diligence in uncovering the newly-
discovered information. Id. With regard to the governmental interference
exception, premised upon Williams’ Brady claim, the PCRA court shall
determine whether the prosecution interfered with Williams’ ability to present
his claim. If, in fact, the court concludes there was interference, then the
court shall determine whether Williams was duly diligent in seeking out the
facts on which that claim is based. Commonwealth v. Smith, 194 A.3d 126,
133 (Pa. Super. 2018) (acknowledging that Brady violation may satisfy
governmental interference exception, but “the petitioner must plead and
prove that the failure to previously raise these claims was the result of
interference by government officials, and that the information could not have
been obtained earlier with the exercise of due diligence.”) (citation omitted).20
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19 Again, applying the holding of Small, the PCRA court may not presume that
the information cannot be deemed unknown based solely on the fact that it
was publically disclosed or a matter of public record. See Burton,
158 A.3d
618, 638 at n.23 (“a . . . petitioner is still required to prove that the facts upon
which his claim . . . is based were unknown to him and not ascertainable by
the exercise of due diligence. Our decision merely eliminates what we
conclude is an unjustifiable presumption.”) (italics in original; emphasis
added).
20 We reiterate that section 9545(b)(1)(ii) is a jurisdictional threshold that
does not require any merits analysis of an underlying after-discovered
evidence claim. See
Bennett, supra; see also Commonwealth v. Brown,
111 A.3d 171, 176-77 (Pa. Super. 2015). It is only after a petitioner
establishes jurisdiction by pleading and proving the newly-discovered facts
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Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/21
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exception that he or she can then present a substantive after-discovered
evidence claim pursuant to section 9543(a)(2)(vi) of the PCRA. See 42
Pa.C.S.A. § 9543(a)(2)(vi) (providing relief under PCRA if petitioner pleads
and proves “[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”).
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