due diligence inquiry in Pennsylvania

2020We have held that “the due diligence inquiry is fact-sensitive and dependent upon the circumstances presented.” Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa. Super. 2015) (footnote omitted).

2020We have explained that “the due diligence inquiry is fact-sensitive and dependent upon the circumstances presented.” Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa. Super. 2015) (en banc).

2025See Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010) (stating that “[w]here the trial court failed to consider the evidence in the record as it - 10 - J-S07008-25 reflected on [the Commonwealth’s] due diligence” that “the proper action [is] a remand to the trial court to determine whether the Commonwealth exercised due diligence pursuant to Rule 600”); Commonwealth v. Malinowski, 671 A.2d 674, 680 (Pa. 1996) (remanding back to the trial court to conduct a proper accounting of time under the predecessor to Rule 600); see also Commonwealth v. Richardson, 2572 EDA 2018, 2020 WL 1922515 ,

2025See Martz, 232 A.3d at 810 (explaining that “[d]ue diligence is a fact-specific concept that must be determined on a case-by-case basis” (citation omitted and emphasis added)); see also Commonwealth v. Shaw, 247 A.3d 1008 , 1017 (Pa. 2021) (reiterating that “[i]t is not an appellate court’s function to engage in fact-finding” (citation omitted)); but see Selenski, 994 A.2d at 1089 (explaining that “the trial court[] failed to focus its inquiry on due diligence[,]” and the proper action is a remand for the trial court to conduct a proper due diligence analysis, but our Supreme Court declined to

2026See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) (rejecting an appellant’s attempt to invoke section 9545(b)(1)(ii) because he failed to offer any evidence, he exercised due diligence in obtaining facts upon which his claim was based); Brown, 111 A.3d at 178 (same).

2023As such, “the due diligence inquiry is fact-sensitive and dependent upon the circumstances presented.” Id. (citation omitted). “[A] petitioner must explain why he could not have learned the new facts earlier with the exercise of due diligence.” Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001) -4- J-S27008-22 discovery that his counsel abandoned him, depriving him of collateral review by failing to file a timely PCRA petition.

2021See Commonwealth v. Brown, 111 A.3d 171 , 176 - 10 - J-S17029-21 (Pa. Super. 2015) (explaining the due diligence requirement for a timeliness exception is strictly enforced; due diligence demands that the petitioner take reasonable steps to protect his own interests).

2018Id. “[T]he ‘new facts’ exception at Section 9545(b)(1)(ii) does not require any merits analysis of an underlying after- discovered-evidence claim.” Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015) (citation and footnote omitted). -4- J-S27045-18 In the instant case, after reviewing the case law applicable to the ascertainment of facts from public records, the PCRA court concluded that Appellant had not satisfied the due diligence requirement of the newly discovered fact exception, stating: In applying this precedent, this Court simply cannot find that Lee’s perjury conviction, as a p

2018See id. ‘“Excusable delay’ is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth’s control and despite its due diligence.” Hunt, 858 A.2d at 1241 (citation omitted).

2008As we noted in Commonwealth v. Ramos, 936 A.2d 1097 (Pa.Super.2007) (en banc), the due diligence analysis is part and parcel of Rule 600(G) and the Commonwealth bears the burden of proving its diligence.

2021See Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa. Super. 2018) (recognizing that a delay that resulted from the unavailability of time on trial court’s calendar was excludable from the Rule 600 calculation); Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (stating that, “[i]n conducting the due diligence inquiry, our jurisprudence has excused such delay resulting from court congestion.”).

2021See Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa. Super. 2018) (recognizing that a delay that resulted from the unavailability of time on trial court’s calendar was excludable from the Rule 600 calculation); Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (stating that, “[i]n conducting the due diligence inquiry, our jurisprudence has excused such delay resulting from court congestion.”).

2021See Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa. Super. 2018) (recognizing that a delay that resulted from the unavailability of time on trial court’s calendar was excludable from the Rule 600 calculation); Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (stating that, “[i]n conducting the due diligence inquiry, our jurisprudence has excused such delay resulting from court congestion.”).

2021See Commonwealth v. McCarthy, 180 A.3d 368, 376 (Pa. Super. 2018) (recognizing that a delay that resulted from the unavailability of time on trial court’s calendar was excludable from the Rule 600 calculation); Commonwealth v. Frye, 909 A.2d 853, 859 (Pa. Super. 2006) (stating that, “[i]n conducting the due diligence inquiry, our jurisprudence has excused such delay resulting from court congestion.”).

2018See id. ‘“Excusable delay’ is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth’s control and despite its due diligence.” Hunt, 858 A.2d at 1241 (citation omitted).

2016See Ramos, 936 A.2d at 1103 . “‘Excusable delay’ is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth’s control and despite its due diligence.” Hunt, 858 A.2d at 1241 (citation omitted).

2024The due diligence inquiry “is fact-sensitive and dependent upon the circumstances presented.” Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (quotation marks and citation omitted).

2023As such, “the due diligence inquiry is fact-sensitive and dependent upon the circumstances presented.” Id. (citation omitted).

2023I further observe that, in Stokes, this Court held that the absence of a due diligence requirement would “negate – wholly” the PCRA’s timeliness requirements because it would permit a PCRA petition to be filed “at any time, so long as the claim is couched in terms of a Brady violation.” Stokes, 959 A.2d at 311 (emphasis in original).

2019Id. at 5; see also Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008) (noting that the due diligence requirement must be satisfied “in order to invoke either [the ____________________________________________ 4 Brady v. Maryland, 373 U.S. 83 (1963). 5 “Although a Brady violation may fall within the governmental interference exception, the petitioner must plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence.” Commonwealth v. Abu-Jamal, 941 A.2

2023“A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).

2018Id. “[T]he ‘new facts’ exception at Section 9545(b)(1)(ii) does not require any merits analysis of an underlying after- discovered-evidence claim.” Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015) (citation and footnote omitted). -4- J-S27045-18 In the instant case, after reviewing the case law applicable to the ascertainment of facts from public records, the PCRA court concluded that Appellant had not satisfied the due diligence requirement of the newly discovered fact exception, stating: In applying this precedent, this Court simply cannot find that Lee’s perjury conviction, as a p

2025Id. at 11 (citing Commonwealth v. Burton, 158 A.3d 618 Pa. 2017).

2019Brian testified that he nearly stopped talking to Maxwell after he was arrested on these crimes and did not ____________________________________________ 4 A due diligence inquiry is fact-sensitive and dependent upon the totality of the circumstances presented, and “due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063 , 1070–71 (Pa. Super. 2015), aff’d., 158 A.3d 618 (Pa. 2017)

2026While “nevertheless, it may ‘factor’ into the due diligence analysis,” id., “[d]ue diligence must be judged on what was done by the authorities, not on what was ‘not done.’” Commonwealth v. Preston, 904 A.2d 1, 12 (Pa. Super. 2006) (internal citations omitted).

2024See Commonwealth v. Robbins, 900 A.2d 413, 417 (Pa. Super. 2006) (holding that the Commonwealth is not required to inform the court of an imminent run date violation and the failure to do so is not dispositive in a due diligence analysis).

2026See Abu-Jamal, supra at 228 (“Although a Brady violation may fall within the governmental interference exception, the petitioner must plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence.”)(emphasis added); See also Stokes, supra. If it were the case that an appellant presenting a well-pled Brady claim could satisfy the due diligence requirement of any exception to the PCRA by pointing to the Commonwealth’s outstanding obligation to produce ma

2026See Abu-Jamal, supra; Breakiron, supra. Rather, insofar as Appellant’s petition addresses the due diligence requirement of either pled exception to the time bar, he contends that he exerted all effort required to show he acted with due diligence by submitting a discovery request to the Commonwealth prior to trial.

2021See Mills, supra at 325 ; see also Selenski, supra at 1089 (explaining that where the trial court had not conducted a due diligence analysis in the first instance, the Superior Court should remand so that the trial court can make that determination).

2020See Mills, supra at 325 ; see also Selenski, supra at 1089 (explaining that where the trial court had not conducted a due diligence analysis in the first instance, the Superior Court should remand so that the trial court can make that determination).

2025The judge shall conduct a hearing on the motion. * * * Pa.R.Crim.P. 600. “[A] motion to dismiss pursuant to Pa.R.Crim.P. 600 must be made in writing, and a copy of such motion must be served on the Commonwealth’s attorney.” Commonwealth. v. Brock, 619 Pa. 278, 287 , 61 A.3d 1015, 1020 (2013) (emphasis added). “[T]he plain language of Rule 600 does not implicate a due diligence inquiry until, as calculated from the filing of an existing complaint, the applicable period has elapsed and a defendant files a motion to dismiss the charges.” Commonwealth. v. Peterson, 19 A.3d 1131, 1135 (Pa.Super. 20

2014See also Commonwealth v. Peterson, 19 A.3d 1131, 1135-1136, n. 4 (Pa.Super.2011) (recognizing that while the language of Rule 600 ordinarily applies to defendants on bail, both our Supreme Court and the Superior Court have applied Rule 600 to defendants who are not eligible for bail or were otherwise not free on bail at the time that the 365-day period elapsed).

2025Lear, 325 A.3d 552 , 560 (Pa. 2024) (citations, original brackets, and some quotation marks omitted; emphasis in original). “[T]he causation analysis precedes the due diligence inquiry, and it is only when the Commonwealth both caused the delay and lacked due diligence that the delay is properly included in the Rule 600 calculation.” Id. at 560-561 n.7. “[A]ny delay caused by the need to reschedule a trial because of a continuance attributable to the defense constitutes excludable time, even if the defendant was prepared to go to trial at an earlier date.” Commonwealth v. Walker, 331 A.3d 43 ,

2025Lear, 325 A.3d 552 , 560 (Pa. 2024) (citations, original brackets, and some quotation marks omitted; emphasis in original). “[T]he causation analysis precedes the due diligence inquiry, and it is only when the Commonwealth both caused the delay and lacked due diligence that the delay is properly included in the Rule 600 calculation.” Id. at 560-561 n.7. “[A]ny delay caused by the need to reschedule a trial because of a continuance attributable to the defense constitutes excludable time, even if the defendant was prepared to go to trial at an earlier date.” Commonwealth v. Walker, 331 A.3d 43 ,

2025“Stated in the most general terms, when the Commonwealth causes delay [and failed to exercise due diligence], the Rule 600 clock continues to tick; when the defendant causes the delay, the clock stops.” 18 Commonwealth v. Morgan, 239 A.3d 1132, 1137 (Pa. Super. 2020) (citation omitted); see also Lear, 325 A.3d at 560; Walker, 331 A.3d at 46.

2025“Stated in the most general terms, when the Commonwealth causes delay [and failed to exercise due diligence], the Rule 600 clock continues to tick; when the defendant causes the delay, the clock stops.” 18 Commonwealth v. Morgan, 239 A.3d 1132, 1137 (Pa. Super. 2020) (citation omitted); see also Lear, 325 A.3d at 560; Walker, 331 A.3d at 46.

2024See Commonwealth v. Browne, 584 A.2d 902, 906 (Pa. 1990).

2012Id. at 906.

2019Further, the focus of the due diligence exception is “on [the] newly[-]discovered facts, not on a newly[- ]discovered or newly willing source for previously known facts.” -8- J-S57009-19 Commonwealth v. Marshall, 947 A.2d 714, 721-22 (Pa. 2008).

2017Quoting our Supreme Court and this Court, the PCRA court stated that the due diligence standard “requires neither perfect vigilance nor punctilious care, based on the particular circumstances, to uncover facts that may support a claim for collateral relief[,]” yet “demands that the petitioner take reasonable steps to protect [her] own interests.” PCRA Court Opinion, supra at 5, quoting Commonwealth v. Hill, 558 Pa. 238 , 736 A.2d 578, 588 (1999) (internal citations omitted) and Commonwealth v. Marshall, 596 Pa. 587 , 947 A.2d 714, 720 (2008) (citation and punctuation omitted) (emphasis added).

2018See id.; see also Brown, 141 A.3d at 500 .

2017When considering the due diligence requirement, [t]his Court has held “that due diligence requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief.” Commonwealth v. Brown, 141 A.3d 491, 506 (Pa. Super. 2016) (quotation omitted).

2017Quoting our Supreme Court and this Court, the PCRA court stated that the due diligence standard “requires neither perfect vigilance nor punctilious care, based on the particular circumstances, to uncover facts that may support a claim for collateral relief[,]” yet “demands that the petitioner take reasonable steps to protect [her] own interests.” PCRA Court Opinion, supra at 5, quoting Commonwealth v. Hill, 558 Pa. 238 , 736 A.2d 578, 588 (1999) (internal citations omitted) and Commonwealth v. Marshall, 596 Pa. 587 , 947 A.2d 714, 720 (2008) (citation and punctuation omitted) (emphasis added).

2017Quoting our Supreme Court and this Court, the PCRA court stated that the due diligence standard “requires neither perfect vigilance nor punctilious care, based on the particular circumstances, to uncover facts that may support a claim for collateral relief[,]” yet “demands that the petitioner take reasonable steps to protect [her] own interests.” PCRA Court Opinion, supra at 5, quoting Commonwealth v. Hill, 558 Pa. 238 , 736 A.2d 578, 588 (1999) (internal citations omitted) and Commonwealth v. Marshall, 596 Pa. 587 , 947 A.2d 714, 720 (2008) (citation and punctuation omitted) (emphasis added).

2006See Commonwealth v. Brown, 875 A.2d 1128, 1138 (Pa.Super.2005) (finding excusable a 34-day delay caused by another trial in progress; collecting cases holding the Commonwealth exercised reasonable effort when overburdened docket within the run date the Commonwealth was ready to commence trial and was prevented from doing so by administrative error resulting in a trial date three days beyond the run date). 1 ¶ 19 Therefore, we conclude the Commonwealth exercised reasonable effort throughout the pendency of this case to bring Appellant to trial within the time prescribed by Rule 600.

2005See Brown, supra. ¶ 30 In his third issue, Appellant argues the Commonwealth needed to demonstrate three elements to prove his guilt on the charge of first degree murder: 1) the victim was unlawfully killed; 2) Appellant did the killing; and 3) Appellant killed the victim in an intentional, deliberate and premeditated way.

2025We reasoned that determining whether petitioner acted with due diligence in disclosing the newly-discovered facts would require “[r]ecognizing the nature of the underlying claim—as distinguished from assessing its merits[:]” [W]hile [Commonwealth v.] Bennett[, 930 A.2d 1264 (Pa. 2007),] and its progeny instruct courts to avoid analyzing the merits of the underlying claim, we believe that principle cannot go so far as to altogether preclude the courts from considering the claim the petitioner seeks to raise in determining whether an evidentiary hearing is warranted.

2015See, e.g., Bennett, 930 A.2d at 1275 n.13 (noting that the PCRA court is free to examine questions that may arise in the context of a due diligence inquiry).8 For the above reasons, we conclude that the PCRA court erred in rejecting Appellant’s untimely petition pursuant to the public records rule.

2026I also write to express my concern with the application of a due diligence requirement to claims raising violations of the constitutional rule announced in Brady v. Maryland, 373 U.S. 83 (1963).

2019Id. at 5; see also Commonwealth v. Stokes, 959 A.2d 306, 309 (Pa. 2008) (noting that the due diligence requirement must be satisfied “in order to invoke either [the ____________________________________________ 4 Brady v. Maryland, 373 U.S. 83 (1963). 5 “Although a Brady violation may fall within the governmental interference exception, the petitioner must plead and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence.” Commonwealth v. Abu-Jamal, 941 A.2

2023See, e.g., Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008); Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006).

2015See Edmiston, supra; Bennett, supra; Hawkins, supra. It is further axiomatic that the PCRA time-bar is to be strictly construed.

2017Appellee further contends that the due diligence requirement of subsection 9545(b)(1)(ii) is centered on the reasonableness of a petitioner’s conduct, as recognized by the Superior Court in Davis, supra, and Medina, supra. Appellee’s Brief at 19-20. 16 As the proper interpretation and scope of subsection 9545(b)(1)(ii) is a matter of statutory construction, we are guided by the Statutory Construction Act (“Act”). 1 Pa.C.S. §§ 1601 et seq.

2017Appellee further contends that the due diligence requirement of subsection 9545(b)(1)(ii) is centered on the reasonableness of a petitioner’s conduct, as recognized by the Superior Court in Davis, supra, and Medina, supra. Appellee’s Brief at 19-20.16 As the proper interpretation and scope of subsection 9545(b)(1)(ii) is a matter of statutory construction, we are guided by the Statutory Construction Act (“Act”). 1 Pa.C.S. §§ 1501 et seq.

2017Appellee further contends that the due diligence requirement of subsection 9545(b)(1)(ii) is centered on the reasonableness of a petitioner’s conduct, as recognized by the Superior Court in Davis, supra, and Medina, supra. Appellee’s Brief at 19-20. 16 As the proper interpretation and scope of subsection 9545(b)(1)(ii) is a matter of statutory construction, we are guided by the Statutory Construction Act (“Act”). 1 Pa.C.S. §§ 1601 et seq.

2015Id. at 1214 (“The PCRA court’s credibility determinations, when supported by the record, are binding on this Court.”) (emphasis added) (quoting Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)). 4 Incidentally, Black’s Law Dictionary defines due diligence in the following manner: Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any (Footnote Continued Next Page) - 12 - J-E04008-14 although the Pennsylvania Supreme Court has yet to adopt expressl