Com. v. Tomlin, S.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2025
• Docket: 1139 EDA 2024
• Status: Unpublished

Opinion

J-S41040-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN TOMLIN : : Appellant : No. 1139 EDA 2024

Appeal from the PCRA Order Entered March 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0608751-1998

BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 19, 2025

Shawn Tomlin (“Tomlin”) appeals pro se from the order dismissing as

untimely his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

This Court previously summarized the factual and procedural history of

Tomlin’s convictions as follows:

On December 4, 1997, the victim, Courtney Gibson [(“the victim”)], and his cousin, Charles Stover [(“Stover”)], were at Gibson’s residence playing outside with their dog. The victim and Stover both dealt narcotics together in their neighborhood in Philadelphia. As the men were taking the dogs in for the evening, Tomlin and his brother Tyrone Tomlin, Jr., ([“]Tyrone[”]) approached them. Tomlin and [Tyrone] began to argue and shout at the victim and Stover over a drug-dealing dispute. During the argument, Tyrone pulled a gun from his pocket. The victim struggled with Tyrone in an effort to retrieve the gun. During the struggle, Tyrone was shot twice. While Tyrone lay writhing in pain on the ground, [Tomlin] fired multiple shots at the victim. After ____________________________________________

1 See 42 Pa.C.S.A. §§ 9541-9546. J-S41040-24

the victim fell on the ground, Stover ran upstairs into the victim’s house and looked out a second story window at the scene.

Stover observed [Tomlin] and another accomplice, John Maddox ([“]Maddox[”]), fire several more shots at the victim. Stover witnessed another of the victim’s cohorts, known as “Slink,” fire at [Tomlin] and Maddox and then run away. Thereafter, [Tomlin], Maddox and an unidentified driver left the scene to take Tyrone to Temple University Hospital. Stover then fled the scene to his aunt’s home.

****

On February 16, 2000, following a nine-day trial, [at which Stover testified against Tomlin,] a jury convicted Tomlin of third- degree murder, carrying a firearm without a license, possession of instruments of crime, and criminal conspiracy. On April 26, 2000, the trial court sentenced Tomlin to serve an aggregate prison term of 26 to 52 years. Initially, Tomlin did not file a direct appeal. However, his appellate rights were reinstated and on October 28, 2002, a panel of this Court affirmed Tomlin’s judgment of sentence.[2]

Commonwealth v. Tomlin, 1357 EDA 2005 (Pa. Super. Nov. 30, 2007)

(unpublished mem. at 1-2).

Tomlin filed his first PCRA petition in 2004. After appointed counsel filed

an amended petition, the PCRA court denied relief, and this Court affirmed.

See id. Tomlin filed a second PCRA petition in 2012. The PCRA court

dismissed that petition, and this Court affirmed. See Commonwealth v.

Tomlin, 2863 EDA 2014 (Pa. Super. Aug. 19, 2015) (j. order at 1).

In December 2022, Tomlin filed the instant third PCRA petition asserting

he recently discovered new information that Stover received favorable

____________________________________________

2 Tomlin did not file a petition for allowance of appeal from this Court’s decision

affirming his judgment of sentence.

-2- J-S41040-24

treatment in other criminal matters after testifying at Tomlin’s trial. See PCRA

Pet., 12/30/22, at 4. Tomlin asserted that Stover had been on probation for

two drug cases (“drug cases”) and was facing new gun charges (“gun

charges”) when he testified at trial, and that, during closing arguments, the

prosecutor stated Stover testified against Tomlin despite the fact that Stover

was labelled a snitch and was going back to jail for the gun charges or the

drug cases. See id. at 7-8.3 Tomlin continued that he recently discovered

Stover received an aggregate of four years of probation for the gun charges

and suffered no consequences for violating probation in the drug cases. See

id. at 8.4

Tomlin claimed his discovery of the lenient treatment Stover received

established the governmental interference and new facts exceptions to the

PCRA timeliness requirements because: (1) the prosecutor failed to disclose

that the Commonwealth had entered into a plea agreement with Stover on

the gun charges and the possible probation violations in the drug cases; (2)

the prosecutor failed to inform the jury that the Commonwealth controlled

whether to pursue violations of Stover’s probation in the drug cases; (3) the

3 We note Tomlin appears to quote portions of a trial transcript. However, Tomlin has not ensured the record transmitted to this Court included copies of the trial transcript. Therefore, we are unable to verify the accuracy of Tomlin’s quotations of the trial transcript. However, neither the PCRA court nor the Commonwealth challenged the accuracy of Tomlin’s quotations.

4 Tomlin attached to his petition an affidavit from his daughter that, in March

2022, she forwarded to him legal documents, which included summaries and quarter sessions notes in Stover’s cases.

-3- J-S41040-24

Commonwealth did not pursue violations of probation in Stover’s drug cases;

and (4) contrary to the prosecutor’s closing argument, Stover did not go back

to jail after testifying against Tomlin. See id. at 10-14 (asserting the

prosecutor violated his duties to disclose information favorable to the defense

pursuant to Brady v. Maryland, 373 U.S. 83 (1963)); see also 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(ii). Moreover, Tomlin noted he filed his PCRA petition within

one year of receiving the information about Stover, and he further claimed he

had no basis to believe Stover would have avoided jail after testifying against

Tomlin because the prosecutor at Tomlin’s trial stated Stover would go to

prison. See PCRA Pet., 12/30/22, at 4-5 (citing, inter alia, Commonwealth

v. Small, 238 A.3d 1267 (Pa. 2019) (eliminating the “public record

presumption” formerly used to impute knowledge to petitioners of facts of

public record)).

The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss

Tomlin’s petition as untimely. Tomlin did not respond to the Rule 907 notice,

and the PCRA court dismissed the petition. Tomlin timely appealed. The PCRA

court did not order a Pa.R.A.P. 1925(b) statement but provided a separate

opinion.

Tomlin raises the following issues for our review:

I. Did the PCRA court’s timeliness determination violate the plain statutory language of the PCRA insofar as the petition was filed within the one-year of the date the claim could . . . have been presented?

II. Did the PCRA court err in its determination that the petition did not satisfy the after-discovered fact exception?

-4- J-S41040-24

Tomlin’s Brief at 4.

Our standard of review of an order dismissing a PCRA petition is as

follow:

Our review of a PCRA court’s decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the record in the light most favorable to the prevailing party in the PCRA court. We are bound by any credibility determinations made by the PCRA court where they are supported by the record. However, we review the PCRA court's legal conclusions de novo.

Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation

and quotations omitted). On appeal, the PCRA petitioner “has the burden to

persuade this Court that the PCRA court erred and that such error requires

relief.” Commonwealth v. Wholaver, 177 A.3d 136, 144-45 (Pa. 2018)

(internal citations omitted). Further, “it is well settled that this Court may

affirm a valid judgment or order for any reason appearing as of record.” Id.

at 145 (internal citation omitted).

In both of his issues, Tomlin contends the PCRA court improperly

dismissed his instant third petition as untimely.

Under the PCRA, any petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S.A. § 9545(b)(1). The PCRA’s timeliness requirements are jurisdictional

in nature, and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. See Commonwealth v. Albrecht, 994

A.2d 1091, 1093 (Pa. 2010).

-5- J-S41040-24

Pennsylvania courts may nevertheless consider an untimely PCRA

petition if the petitioner can plead and prove one of three exceptions set forth

in section 9545(b)(1)(i)-(iii), and he filed his PCRA petition invoking a

timeliness exception within one year of the date the claim could have been

presented. See 42 Pa.C.S.A. § 9545(b)(2). The relevant exceptions in this

appeal include the governmental interference exception under section

9545(b)(1)(i) and the new facts exception under section 9545(b)(1)(ii), which

provide:

(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 . . ..

42 Pa.C.S.A. § 9545(b)(1)(i)-(ii).

To establish the governmental interference exception, pursuant to

section 9545(b)(1)(i), a petitioner must plead and prove: (1) the failure to

previously raise the claim was the result of interference by government

officials, and (2) the petitioner could not have obtained the information earlier

with the exercise of due diligence. See Commonwealth v. Kennedy, 266

A.3d 1128, 1135 (Pa. Super. 2021). Section 9545(b)(1)(ii) also provides an

-6- J-S41040-24

exception to the jurisdictional time-bar if “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.A. § 9545(b)(1)(ii).

Due diligence “demands that the petitioner take reasonable steps to protect

his own interests. A petitioner must explain why he could not have learned

the new fact(s) earlier with the exercise of due diligence. This rule is strictly

enforced.” Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super.

2014) (internal quotations and citations omitted). Any PCRA petition invoking

an exception under 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);

Kennedy, 266 A.3d at 1133 n.9.

In the present case, Tomlin does not dispute that the instant third PCRA

petition was facially untimely.5 Nevertheless, Tomlin contends the PCRA court

erred in dismissing his petition because he recently discovered Stover received

favorable treatment in other criminal matters and filed the instant third

petition within one year of receiving that information. See Tomlin’s Brief at

8-9. Tomlin emphasizes the Commonwealth argued at trial that Stover would

be going to jail for his other criminal matters, but did not inform the jury that

the Commonwealth had discretion to seek revocations of Stover’s probation. ____________________________________________

5 As noted above, this Court affirmed Tomlin’s conviction in October 2002, and

Tomlin did not seek allowance of appeal. Therefore, Tomlin’s conviction became final in November 2002, and he had until November 2003 to file a facially timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1), (3); see also Pa.R.A.P. 1113(a). Accordingly, the instant third petition, which Tomlin filed in December 2022, was facially untimely.

-7- J-S41040-24

See id. at 13. Tomlin notes he only later discovered Stover did not go to jail,

having only received a probationary sentence for his gun charges and suffering

no related consequences for the violation of his probation on the drug charges.

See id. at 10-13. Tomlin claims that none of the PCRA’s timeliness

requirements required him to prove the existence of a plea agreement

between the Commonwealth and Stover. See id. at 12-13.

The PCRA court determined that Tomlin failed to establish the

governmental interference or new facts exceptions because he did not

substantiate the existence of an agreement between the Commonwealth and

Stover. See PCRA Ct. Op., 3/26/24, unnumbered at 2-3. The court explained

that “nothing in the record or the evidence shared by [Tomlin] indicates such

a deal [for leniency] even existed, let alone that the prosecution was aware of

the existence of such a deal and withheld this information from the defense.”

Id. at 3-4.

Following our review, we conclude the PCRA court properly determined

Tomlin did not establish the governmental interference exception to the PCRA

timeliness requirements. Tomlin speculates that there must have been an

agreement between the Commonwealth and Stover at trial because Stover

later received lenient treatment. However, speculation alone is insufficient to

establish the existence of an agreement and that the prosecutor failed to

disclose such an agreement at Tomlin’s trial. See Commonwealth v.

Dickerson, 900 A.2d 407, 411 (Pa. Super. 2006) (holding that a speculative

claim regarding the existence of favorable information did not state a time bar

-8- J-S41040-24

exception for governmental interference); cf. Commonwealth v.

Champney, 832 A.2d 403, 412 (Pa. 2003) (noting that a “mere assumption”

is insufficient to establish that an agreement existed). 6 Thus, we affirm the

PCRA court’s conclusion that Tomlin did not establish a timeliness exception

under section 9545(b)(1)(i) for governmental interference.

With respect to the new facts exception, Tomlin’s petition pleaded a fact

that was previously unknown to him and upon which he attempts to predicate

claims for PCRA relief. See 42 Pa.C.S.A. § 9545(b)(1)(ii).7 However, while

Tomlin asserted that he had no reason to disbelieve the prosecutor’s closing

6 Tomlin cites Commonwealth v. Strong, 761 A.2d 1167 (Pa. 2000), for the

proposition that he was not required to adduce proof of an actual agreement between the Commonwealth and Stover for favorable treatment. Strong, 761 A.2d at 1171 (noting that “Brady does not require a signed contract between the prosecution and its witnesses”). However, while Strong stands for the proposition that a PCRA petitioner need not present evidence of “an ironclad agreement” between the Commonwealth and a witness to trigger a Brady claim, Strong did not consider the viability of a Brady claim under the governmental interference exception to the PCRA’s timeliness requirements. Additionally, the evidence in Strong included the witness’s testimony that he testified against the petitioner pursuant to a deal with the Commonwealth, as well as circumstantial evidence establishing the existence of an understanding between the Commonwealth and the witness. See id. at 1172, 1174. Strong, therefore, does not support Tomlin’s belief that he can establish a governmental interference exception based solely on speculation regarding some “implication, promise or understanding that the government would extend leniency in exchange for a witness’[s] testimony is relevant to the witness’s credibility.” Strong, 761 A.2d at 1171 (internal citation omitted).

7 We note that Tomlin cites no relevant authority requiring the Commonwealth

to remind the jury that the Commonwealth may decide when to seek a violation of probation matter. Moreover, regardless of the actual outcome in Stover’s other criminal cases, Tomlin could have raised such an issue at trial, in his direct appeal nunc pro tunc, or in his two previous PCRA petitions.

-9- J-S41040-24

argument that Stover would be serving jail time, Tomlin only averred that he

filed the instant petition within one year of March 2022, when he received the

information about the outcomes in Stover’s pending cases. Tomlin did not

outline any additional steps he took in acquiring this information despite

having taken a direct appeal nunc pro tunc and filing two previous PCRA

petitions. Although a court cannot dismiss a PCRA petition based on a

presumption that a petitioner was aware of information in public records, that

principle does not excuse Tomlin from his burden of taking reasonable steps

to protect his own interests and explain why he could not have learned the

new fact earlier with the exercise of due diligence. See Commonwealth v.

Myers, 303 A.3d 118, 123 (Pa. Super. 2023). Absent any pleading concerning

Tomlin’s efforts to undertake even a minimal investigation of Stover, whom

Tomlin described as the Commonwealth’s chief witness at trial, we cannot

conclude the PCRA court erred in dismissing Tomlin’s petition at untimely. 8

Order affirmed.

8 Moreover, even assuming Tomlin had adequately pleaded diligence, the claims predicated on the previously unknown fact that Stover received lenient treatment would not merit relief. As stated above, any contention that the Commonwealth entered into an agreement with Stover for testimony against Tomlin is too speculative. See Champney, 832 A.2d at 412. Similarly, any contention that the prosecutor at Tomlin’s trial was aware that Stover would not receive jail time, but argued otherwise to the jury, is too speculative. Thus, no relief would be due on the merits of Tomlin’s claims.

- 10 - J-S41040-24

Date: 8/19/2025

- 11 -